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430 U.S. 762
97 S.Ct. 1459
52 L.Ed.2d 31
Deta Mona TRIMBLE and Jessie Trimble, Appellants,v.Joseph Roosevelt GORDON et al.
No. 75-5952.
Argued Dec. 7, 1976.
Decided April 26, 1977.
Syllabus
Section 12 of the Illinois Probate Act, which allows illegitimate children to inherit by intestate succession only from their mothers (though under Illinois law legitimate children may inherit by intestate succession from both their mothers and their fathers), held to violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 766-776.
(a) A classification based on illegitimacy such as that challenged here is not "suspect" so as to require that it survive "strict scrutiny," Mathews v. Lucas, 427 U.S. 495, 506, 96 S.Ct. 2755, 2763, 49 L.Ed.2d 651. Nevertheless, this Court requires, "at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose," Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768, and the Court's previous decisions in this area show that the standard is "not a toothless one." Mathews v. Lucas, supra, 427 U.S., at 510, 96 S.Ct., at 2764. P. 767.
(b) Section 12 cannot be justified on the ground that it promotes legitimate family relationships. A State may not attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships. Pp. 768-770.
(c) Difficulties of proving paternity in some situations do not justify the total statutory disinheritance of illegitimate children whose fathers die intestate. Section 12 is not "carefully tuned to alternative considerations," Mathews v. Lucas, supra, 427 U.S., at 513, 96 S.Ct., at 2766, as is illustrated by the fact that in the instant case the decedent had been determined to be the appellant child's father in a state-court paternity action. Pp. 770-773.
(d) The fact that appellant's father could have provided for her by making a will does not save § 12 from invalidity under the Equal Protection Clause. Pp. 773-774.
(e) Though appellees contend that § 12 should be sustained on the theory that it represents the legislature's attempt to mirror the intent of Illinois decedents, the Illinois Supreme Court in construing the law did not rely upon a theory of presumed intent, and this Court's own examination of the statutory provision discloses no such legislative intent; rather, as the State Supreme Court indicated, § 12's primary purpose was to provide a system of intestate succession more just to illegitimate children than the previous law, tempered by the secondary interest in protecting against spurious paternity claims. Pp. 774-776.
Reversed and remanded.
James D. Weill, Chicago, Ill., for appellants.
Miles N. Beermann, Chicago, Ill., for appellees.
Mr. Justice POWELL delivered the opinion of the Court.
1
At issue in this case is the constitutionality of § 12 of the Illinois Probate Act1 which allows illegitimate children to inherit by intestate succession only from their mothers. Under Illinois law, legitimate children are allowed to inherit by intestate succession from both their mothers and their fathers.2
2
* Appellant Deta Mona Trimble is the illegitimate daughter of appellant Jessie Trimble3 and Sherman Gordon. Trimble and Gordon lived in Chicago with Deta Mona from 1970 until Gordon died in 1974, the victim of a homicide. On January 2, 1973, the Circuit Court of Cook County, Ill., had entered a paternity order finding Gordon to be the father of Deta Mona and ordering him to pay $15 per week for her support.4 Gordon thereafter supported Deta Mona in accordance with the paternity order and openly acknowledged her as his child. He died intestate at the age of 28, leaving an estate consisting only of a 1974 Plymouth automobile worth approximately $2,500.
3
Shortly after Gordon's death, Trimble, as the mother and next friend of Deta Mona, filed a petition for letters of administration, determination of heirship, and declaratory relief in the Probate Division of the Circuit Court of Cook County, Ill. That court entered an order determining heirship, identifying as the only heirs of Gordon his father, Joseph Gordon, his mother, Ethel King, and his brother, two sisters, and a half brother.5 All of these individuals are appellees in this appeal, but only appellee King has filed a brief.
4
The Circuit Court excluded Deta Mona on the authority of the negative implications of § 12 of the Illinois Probate Act, which provides in relevant part:
5
"An illegitimate child is heir of his mother and of any maternal ancestor, and of any person from whom his mother might have inherited, if living; and the lawful issue of an illegitimate person shall represent such person and take, by descent, any estate which the parent would have taken, if living. A child who was illegitimate whose parents inter-marry and who is acknowledged by the father as the father's child is legitimate."6
6
If Deta Mona had been a legitimate child, she would have inherited her father's entire estate under Illinois law.7 In rejecting Deta Mona's claim of heirship, the court sustained the constitutionality of § 12.
7
After a notice of appeal was filed, the Illinois Supreme Court entered an order allowing direct appeal of the decision of the Circuit Court, bypassing the Illinois Appellate Court. Appellants were granted leave to file an amicus brief in two pending consolidated appeals which presented similar challenges to the constitutionality of § 12. On June 2, 1975, the Illinois Supreme Court handed down its opinion in In re Estate of Karas, 61 Ill.2d 40, 329 N.E.2d 234 (1975), sustaining § 12 against all constitutional challenges, including those presented in appellants' amicus brief.8 On September 24, 1975, oral argument was held in the instant case. Chief Justice Underwood orally delivered the opinion of the court from the bench, affirming the decision of the Circuit Court on the authority of Karas. A final judgment was entered on October 15, 1975.9
8
We noted probable jurisdiction to consider the arguments that § 12 violates the Equal Protection Clause of the Fourteenth Amendment by invidiously discriminating on the basis of illegitimacy and sex.10 424 U.S. 964, 96 S.Ct. 1457, 47 L.Ed.2d 731 (1976). We now reverse. As we conclude that the statutory discrimination against illegitimate children is unconstitutional, we do not reach the sex discrimination argument.
II
9
In Karas, the Illinois Supreme Court rejected the equal protection challenge to the discrimination against illegitimate children on the explicit authority of Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). The court found that § 12 is supported by the state interests in encouraging family relationships and in establishing an accurate and efficient method of disposing of property at death. The court also found the Illinois law unobjectionable because no "insurmountable barrier" prevented illegitimate children from sharing in the estates of their fathers. By leaving a will, Sherman Gordon could have assured Deta Mona a share of his estate.
10
Appellees endorse the reasoning of the Illinois Supreme Court and suggest additional justifications for the statute. In weighing the constitutional sufficiency of these justifications, we are guided by our previous decisions involving equal protection challenges to laws discriminating on the basis of illegitimacy.11 "(T)his Court requires, at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose." Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768 (1972). In this context, the standard just stated is a minimum; the Court sometimes requires more. "Though the latitude given state economic and social regulation is necessarily broad, when state statutory classifications approach sensitive and fundamental personal rights, this Court exercises a stricter scrutiny . . . ." Ibid.
11
(1) Appellants urge us to hold that classifications based on illegitimacy are "suspect," so that any justifications must survive "strict scrutiny." We considered and rejected a similar argument last Term in Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). As we recognized in Lucas, illegitimacy is analogous in many respects to the personal characteristics that have been held to be suspect when used as the basis of statutory differentiations. Id., at 505, 96 S.Ct., at 2762. We nevertheless concluded that the analogy was not sufficient to require "our most exacting scrutiny." Id., at 506, 96 S.Ct., at 2763. Despite the conclusion that classifications based on illegitimacy fall in a "realm of less than strictest scrutiny," Lucas also establishes that the scrutiny "is not a toothless one," id., at 510, 96 S.Ct., at 2764, a proposition clearly demonstrated by our previous decisions in this area.12
III
12
The Illinois Supreme Court prefaced its discussion of the state interests served by § 12 with a general discussion of the purpose of the statute. Quoting from its earlier opinions, the court concluded that the statute was enacted to ameliorate the harsh common-law rule under which an illegitimate child was filius nullius and incapable of inheriting from anyone. 61 Ill.2d, at 44-45, 329 N.E.2d, at 236-237. Although § 12 did not bring illegitimate children into parity with legitimate children, it did improve their position, thus partially achieving the asserted objective. The sufficiency of the justifications advanced for the remaining discrimination against illegitimate children must be considered in light of this motivating purpose.
A.
13
(2) The Illinois Supreme Court relied in part on the State's purported interest in "the promotion of (legitimate) family relationships." 61 Ill.2d, at 48, 329 N.E.2d, at 238. Although the court noted that this justification had been accepted in Labine, the opinion contains only the most perfunctory analysis. This inattention may not have been an oversight, for § 12 bears only the most attenuated relationship to the asserted goal.13
14
In a case like this, the Equal Protection Clause requires more than the mere incantation of a proper state purpose. No one disputes the appropriateness of Illinois' concern with the family unit, perhaps the most fundamental social institution of our society. The flaw in the analysis lies elsewhere. As we said in Lucas, the constitutionality of this law "depends upon the character of the discrimination and its relation to legitimate legislative aims." 427 U.S., at 504, 96 S.Ct., at 2761. The court below did not address the relation between § 12 and the promotion of legitimate family relationships, thus leaving the constitutional analysis incomplete. The same observation can be made about this Court's decision in Labine, but that case does not stand alone. In subsequent decisions, we have expressly considered and rejected the argument that a State may attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships.
15
In Weber we examined a Louisiana workmen's compensation law which discriminated against one class of illegitimate children. Without questioning Louisiana's interest in protecting legitimate family relationships, we rejected the argument that "persons will shun illicit relations because the offspring may not one day reap the benefits of workmen's compensation." 406 U.S., at 173, 92 S.Ct., at 1405. Although Weber distinguished Labine on other grounds, the reasons for rejecting this justification are equally applicable here:
16
"The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual as well as an unjust way of deterring the parent." 406 U.S., at 175, 92 S.Ct., at 1406 (footnote omitted).
17
The parents have the ability to conform their conduct to societal norms, but their illegitimate children can affect neither their parents' conduct nor their own status.
B
18
(3) The Illinois Supreme Court relied on Labine for another and more substantial justification: the State's interest in "establish(ing) a method of property disposition." 61 Ill.2d, at 48, 329 N.E.2d, at 238. Here the court's analysis is more complete. Focusing specifically on the difficulty of proving paternity and the related danger of spurious claims, the court concluded that this interest explained and justified the asymmetrical statutory discrimination against the illegitimate children of intestate men. The more favorable treatment of illegitimate children claiming from their mothers' estates was justified because "proof of a lineal relationship is more readily ascertainable when dealing with maternal ancestors." Id., at 52, 329 N.E.2d, at 240. Alluding to the possibilities of abuse, the court rejected a case-by-case approach to claims based on alleged paternity. Id., at 52-53, 329 N.E.2d, at 240-241.
19
The more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers' estates than that required either for illegitimate children claiming under their mothers' estates or for legitimate children generally. We think, however, that the Illinois Supreme Court gave inadequate consideration to the relation between § 12 and the State's proper objective of assuring accuracy and efficiency in the disposition of property at death. The court failed to consider the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity. For at least some significant categories of illegitimate children of intestate men, inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws. Because it excludes those categories of illegitimate children unnecessarily, § 12 is constitutionally flawed.
20
(4) The orderly disposition of property at death requires an appropriate legal framework, the structuring of which is a matter particularly within the competence of the individual States. In exercising this responsibility, a State necessarily must enact laws governing both the procedure and substance of intestate succession. Absent infringement of a constitutional right, the federal courts have no role here, and, even when constitutional violations are alleged, those courts should accord substantial deference to a State's statutory scheme of inheritance.
21
The judicial task here is the difficult one of vindicating constitutional rights without interfering unduly with the State's primary responsibility in this area. Our previous decisions demonstrate a sensitivity to "the lurking problems with respect to proof of paternity," Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973), and the need for the States to draw "arbitrary lines . . . to facilitate potentially difficult problems of proof," Weber, 406 U.S., at 174, 92 S.Ct., at 1406. "Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination." Gomez, supra, at 538, 93 S.Ct., at 875. Our decision last Term in Mathews v. Lucas, supra, provides especially helpful guidance.
22
In Lucas we sustained provisions of the Social Security Act governing the eligibility for surviving children's insurance benefits. One of the statutory conditions of eligibility was dependency on the deceased wage earner. 427 U.S., at 498, and n. 1, 96 S.Ct., at 2758. Although the Act presumed dependency for a number of categories of children, including some categories of illegitimate children, it required that the remaining illegitimate children prove actual dependency. The Court upheld the statutory classifications, finding them "reasonably related to the likelihood of dependency at death." Id., at 509, 96 S.Ct., at 2764. Central to this decision was the finding that the "statute does not broadly discriminate between legitimates and illegitimates without more, but is carefully tuned to alternative considerations." Id., at 513, 96 S.Ct., at 2766.
23
(5) Although the present case arises in a context different from that in Lucas, the question whether the statute "is carefully tuned to alternative considerations" is equally applicable here. We conclude that § 12 does not meet this standard. Difficulties of proving paternity in some situations do not justify the total statutory disinheritance of illegitimate children whose fathers die intestate. The facts of this case graphically illustrate the constitutional defect of § 12. Sherman Gordon was found to be the father of Deta Mona in a state-court paternity action prior to his death. On the strength of that finding, he was ordered to contribute to the support of his child. That adjudication should be equally sufficient to establish Deta Mona's right to claim a child's share of Gordon's estate, for the State's interest in the accurate and efficient disposition of property at death would not be compromised in any way by allowing her claim in these circumstances.14 The reach of the statute extends well beyond the asserted purposes. See Jimenez v. Weinberger, 417 U.S. 628, 637, 94 S.Ct. 2496, 2502, 41 L.Ed.2d 363 (1974).
C
24
(6) The Illinois Supreme Court also noted that the decedents whose estates were involved in the consolidated appeals could have left substantial parts of their estates to their illegitimate children by writing a will. The court cited Labine as authority for the proposition that such a possibility is constitutionally significant. 61 Ill.2d, at 52, 329 N.E.2d, at 240. The penultimate paragraph of the opinion in Labine distinguishes that case from Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968),15 because no insurmountable barrier prevented the illegitimate child from sharing in her father's estate. "There is not the slightest suggestion in this case that Louisiana has barred this illegitimate from inheriting from her father." 401 U.S., at 539, 91 S.Ct., at 1021. The Court then listed three different steps that would have resulted in some recovery by Labine's illegitimate daughter. Labine could have left a will; he could have legitimated the daughter by marrying her mother; and he could have given the daughter the status of a legitimate child by stating in his acknowledgment of paternity his desire to legitimate her. Ibid. In Weber our distinction of Labine was based in part on the fact that no such alternatives existed, as state law prevented the acknowledgment of the children involved. 406 U.S., at 170-171, 92 S.Ct., at 1404-1405.
25
Despite its appearance in two of our opinions, the focus on the presence or absence of an insurmountable barrier is somewhat of an analytical anomaly. Here, as in Labine, the question is the constitutionality of a state intestate succession law that treats illegitimate children differently from legitimate children. Traditional equal protection analysis asks whether this statutory differentiation on the basis of illegitimacy is justified by the promotion of recognized state objectives. If the law cannot be sustained on this analysis, it is not clear how it can be saved by the absence of an insurmountable barrier to inheritance under other and hypothetical circumstances.
26
By focusing on the steps that an intestate might have taken to assure some inheritance for his illegitimate children, the analysis loses sight of the essential question: the constitutionality of discrimination against illegitimates in a state intestate succession law. If the decedent had written a will devising property to his illegitimate child, the case no longer would involve intestate succession law at all. Similarly, if the decedent had legitimated the child by marrying the child's mother or by complying with the requirements of some other method of legitimation, the case no longer would involve discrimination against illegitimates. Hard questions cannot be avoided by a hypothetical reshuffling of the facts. If Sherman Gordon had devised his estate to Deta Mona this case would not be here. Similarly, in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), if the decedent had left a will naming an executor, the problem of the statutory preference for male administrators of estates of intestates would not have been presented. The opinion in Reed gives no indication that this available alternative had any constitutional significance. We think it has none in this case.
D
27
(7) Finally, appellees urge us to affirm the decision below on the theory that the Illinois Probate Act, including § 12, mirrors the presumed intentions of the citizens of the State regarding the disposition of their property at death. Individualizing this theory, appellees argue that we must assume that Sherman Gordon knew the disposition of his estate under the Illinois Probate Act and that his failure to make a will shows his approval of that disposition. We need not resolve the question whether presumed intent alone can ever justify discrimination against illegitimates,16 for we do not think that § 12 was enacted for this purpose. The theory of presumed intent is not relied upon in the careful opinion of the Illinois Supreme Court examining both the history and the text of § 12. This omission is not without significance, as one would expect a state supreme court to identify the state interests served by a statute of its state legislature. Our own examination of § 12 convinces us that the statutory provisions at issue were shaped by forces other than the desire of the legislature to mirror the intentions of the citizens of the State with respect to their illegitimate children.
28
To the extent that other policies are not considered more important, legislators enacting state intestate succession laws probably are influenced by the desire to reflect the natural affinities of decedents in the allocation of estates among the categories of heirs. See Mathews v. Lucas, 427 U.S., at 514-515, 96 S.Ct., at 2766-2767. A pattern of distribution favoring brothers and sisters over cousins is, for example, best explained on this basis. The difference in § 12 between the rights of illegitimate children in the estates of their fathers and mothers, however, is more convincingly explained by the other factors mentioned by the court below. Accepting in this respect the views of the Illinois Supreme Court, we find in § 12 a primary purpose to provide a system of intestate succession more just to illegitimate children than the prior law, a purpose tempered by a secondary interest in protecting against spurious claims of paternity. In the absence of a more convincing demonstration, we will not hypothesize an additional state purpose that has been ignored by the Illinois Supreme Court.
IV
29
(8) For the reasons stated above, we conclude that § 12 of the Illinois Probate Act17 cannot be squared with the command of the Equal Protection Clause of the Fourteenth Amendment. Accordingly, we reverse the judgment of the Illinois Supreme Court and remand the case for further proceedings not inconsistent with this opinion.
30
So ordered.
31
THE CHIEF JUSTICE, Mr. Justice STEWART, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST dissent. Like the Supreme Court of Illinois, they find this case constitutionally indistinguishable from Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). They would, therefore, affirm the judgment.
32
Mr. Justice REHNQUIST, dissenting.
33
The Fourteenth Amendment's prohibition against "any State . . . deny(ing) to any person . . . the equal protection of the laws" is undoubtedly one of the majestic generalities of the Constitution. If, during the period of more than a century since its adoption, this Court had developed a consistent body of doctrine which could reasonably be said to expound the intent of those who drafted and adopted that Clause of the Amendment, there would be no cause for judicial complaint, however unwise or incapable of effective administration one might find those intentions. If, on the other hand, recognizing that those who drafted and adopted this language had rather imprecise notions about what it meant, the Court had evolved a body of doctrine which both was consistent and served some arguably useful purpose, there would likewise be little cause for great dissatisfaction with the existing state of the law.
34
Unfortunately, more than a century of decisions under this Clause of the Fourteenth Amendment have produced neither of these results. They have instead produced a syndrome wherein this Court seems to regard the Equal Protection Clause as a cat-o'-nine-tails to be kept in the judicial closet as a threat to legislatures which may, in the view of the judiciary, get out of hand and pass "arbitrary," "illogical," or "unreasonable" laws. Except in the area of the law in which the Framers obviously meant it to apply classifications based on race or on national origin, the first cousin of race the Court's decisions can fairly be described as an endless tinkering with legislative judgments, a series of conclusions unsupported by any central guiding principle.
35
It is too well known to warrant more than brief mention that the Framers of the Constitution adopted a system of checks and balances conveniently lumped under the descriptive head of "federalism," whereby all power was originally presumed to reside in the people of the States who adopted the Constitution. The Constitution delegated some authority to the federal executive, some to the federal legislature, some to the federal judiciary, and reserved the remaining authority normally associated with sovereignty to the States and to the people in the States. In reaching the results that it did, the Constitutional Convention in 1787 rejected the idea that members of the federal judiciary should sit on a council of revision and veto laws which it considered unwise; the Convention also rejected a proposal which would have empowered Congress to nullify laws enacted by any of the several States.
36
Following the Civil War, Congress propounded and the States ratified the so-called "Civil War Amendments" the Thirteenth, Fourteenth, and Fifteenth Amendments, which, together with post-Civil War legislation, sharply altered the balance of power between the Federal and State Governments. See Mitchum v. Foster, 407 U.S. 225, 238-242, 92 S.Ct. 2151, 2159-2162, 32 L.Ed.2d 705 (1972). But they were not designed to accomplish this purpose in some vague, ill-defined way which was ultimately to be discovered by this Court more than a century after their enactment. Their language contained the mechanisms by which their purpose was to be accomplished. Congress might affirmatively legislate under § 5 of the Fourteenth Amendment to carry out the purposes of that Amendment; and the courts could strike down state laws found directly to violate the dictates of any of the Amendments.
37
This was strong medicine, and intended to be such. But it cannot be read apart from the original understanding at Philadelphia: The Civil War Amendments did not make this Court into a council of revision, and they did not confer upon this Court any authority to nullify state laws which were merely felt to be inimical to the Court's notion of the public interest.
38
That much is common ground at least at the conscious level. But in providing the Court with the duty of enforcing such generalities as the Equal Protection Clause, the Framers of the Civil War Amendments placed it in the position of Adam in the Garden of Eden. As members of a tripartite institution of government which is responsible to no constituency, and which is held back only by its own sense of self-restraint, see United States v. Butler, 297 U.S. 1, 79, 56 S.Ct. 312, 325, 80 L.Ed. 477 (1936) (Stone, J., dissenting), we are constantly subjected to the human temptation to hold that any law containing a number of imperfections denies equal protection simply because those who drafted it could have made it a fairer or a better law. The Court's opinion in the instant case is no better and no worse than the long series of cases in this line, a line which unfortunately proclaims that the Court has indeed succumbed to the temptation implicit in the Amendment.
39
The Equal Protection Clause is itself a classic paradox, and makes sense only in the context of a recently fought Civil War. It creates a requirement of equal treatment to be applied to the process of legislation legislation whose very purpose is to draw lines in such a way that different people are treated differently. The problem presented is one of sorting the legislative distinctions which are acceptable from those which involve invidiously unequal treatment.
40
All constitutional provisions for protection of individuals involve difficult questions of line drawing. But most others have implicit within them an understandable value judgment that certain types of conduct have a favored place and are to be protected to a greater or lesser degree. Obvious examples are free speech, freedom from unreasonable search and seizure, and the right to a fair trial. The remaining judicial task in applying those guarantees is to determine whether, on given facts, the constitutional value judgment embodied in such a provision has been offended in a particular case.
41
In the case of equality and equal protection, the constitutional principle the thing to be protected to a greater or lesser degree is not even identifiable from within the four corners of the Constitution. For equal protection does not mean that all persons must be treated alike. Rather, its general principle is that persons similarly situated should be treated similarly. But that statement of the rule does little to determine whether or not a question of equality is even involved in a given case. For the crux of the problem is whether persons are similarly situated for purposes of the state action in issue. Nothing in the words of the Fourteenth Amendment specifically addresses this question in any way.
42
The essential problem of the Equal Protection Clause is therefore the one of determining where the courts are to look for guidance in defining "equal" as that word is used in the Fourteenth Amendment. Since the Amendment grew out of the Civil War and the freeing of the slaves, the core prohibition was early held to be aimed at the protection of blacks. See Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); Bickel, The Original Understanding and the Segregation Decision, 69 Harv.L.Rev. 1 (1955). If race was an invalid sorting tool where blacks were concerned, it followed logically that it should not be valid where other races were concerned either. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). A logical, though not inexorable, next step, was the extension of the protection to prohibit classifications resting on national origin. See Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948).
43
The presumptive invalidity of all of these classifications has made decisions involving them, for the most part, relatively easy. But when the Court has been required to adjudicate equal protection claims not based on race or national origin, it has faced a much more difficult task. In cases involving alienage, for example, it has concluded that such classifications are "suspect" because, though not necessarily involving race or national origin, they are enough like the latter to warrant similar treatment. See Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). While there may be individual disagreement as to how such classes are to be singled out and as to whether specific classes are sufficiently close to the core area of race and national origin to warrant such treatment, one cannot say that the inquiry is not germane to the meaning of the Clause.
44
Illegitimacy, which is involved in this case, has never been held by the Court to be a "suspect classification." Nonetheless, in several opinions of the Court, statements are found which suggest that although illegitimates are not members of a "suspect class," laws which treat them differently from those born in wedlock will receive a more far-reaching scrutiny under the Equal Protection Clause than will other laws regulating economic and social conditions. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968); Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543 (1973); Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974). But see Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). The Court's opinion today contains language to that effect. Ante, at 766-767. In one sense this language is a source of consolation, since it suggests that parts of the Court's analysis used in this case will not be carried over to traditional "rational basis" or "minimum scrutiny" cases. At the same time, though, it is a source of confusion, since the unanswered question remains as to the precise sort of scrutiny to which classifications based on illegitimacy will be subject.
45
The appropriate "scrutiny," in the eyes of the Court, appears to involve some analysis of the relation of the "purpose" of the legislature to the "means" by which it chooses to carry out that purpose. The Court's opinion abounds in language of this sort. We are told that "the sufficiency of the justifications advanced for the remaining discrimination against illegitimate children must be considered in light of this motivating purpose (discussed by the Supreme Court of Illinois)." Ante, at 768. The Court comments that while "(t)he Illinois Supreme Court relied in part on the State's purported interest in 'the promotion of (legitimate) family relationships,' " the statute, in the opinion of this Court, "bears only the most attenuated relationship to the asserted goal." Ibid. We are further told that "the court below did not address the relation between § 12 and the promotion of legitimate family relationships, thus leaving the constitutional analysis incomplete." Ante, at 769. But large parts of the Court's opinion are devoted to its assessment of whether § 12 of the Illinois Probate Act did or did not "advance" the "purpose" which the Illinois Legislature had in mind when it passed that section. The crowning irony of the opinion is its assertion that "the judicial task here is the difficult one of vindicating constitutional rights without interfering unduly with the State's primary responsibility in this area." Ante, at 771.
46
The "difficulty" of the "judicial task" is, I suggest, a self-imposed one, stemming not from the Equal Protection Clause but from the Court's insistence on reading so much into it. I do not see how it can be doubted that the purpose (in the ordinary sense of that word) of the Illinois Legislature in enacting § 12 of the Illinois Probate Act was to make the language contained in that section a part of the Illinois law. I presume even the Court will concede that this purpose was accomplished. It was this particular language which the Illinois Legislature, by the required vote of both of its houses and the signature of the Governor, enacted into law. The use of the word "purpose" in today's opinion actually expands the normal meaning of the word into something more like motive. Indeed, the Court says that the law "must be considered in light of this motivating purpose." Ante, at 768. The question of what "motivated" the various individual legislators to vote for this particular section of the Probate Act, and the Governor of Illinois to sign it, is an extremely complex and difficult one to answer even if it were relevant to the constitutional question:
47
"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. 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." Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977) (footnote omitted).
48
What the Court in this case is apparently trying to ascertain is what the legislature had in mind or was trying to accomplish by enacting § 12. And, of course, this is actually an inquiry into motive: Why did the legislature pass this particular law?
49
If the great difficulties, described in Arlington Heights, supra, of ascertaining what various individual legislators "had in mind" when they voted to enact § 12 of the Illinois Probate Act are surmounted, this Court then takes it upon itself to inquire into whether the Act in question accomplished the "purpose" which the Court first determines the legislature had in mind. It should be apparent that litigants who wish to succeed in invalidating a law under the Equal Protection Clause must have a certain schizophrenia if they are to be successful in their advocacy: They must first convince this Court that the legislature had a particular purpose in mind in enacting the law, and then convince it that the law was not at all suited to the accomplishment of that purpose.
50
But a graver defect than this in the Court's analysis is that it also requires a conscious second-guessing of legislative judgment in an area where this Court has no special expertise whatever. Even assuming that a court has properly accomplished the difficult task of identifying the "purpose" which a statute seeks to serve, it then sits in judgment to consider the so-called "fit" between that "purpose" and the statutory means adopted to achieve it. In most cases, and all but invariably if the Court insists on singling out a unitary "purpose," the "fit" will involve a greater or lesser degree of imperfection. Then the Court asks itself: How much "imperfection" between means and ends is permissible? In making this judgment it must throw into the judicial hopper the whole range of factors which were first thrown into the legislative hopper. What alternatives were reasonably available? What reasons are there for the legislature to accomplish this "purpose" in the way it did? What obstacles stood in the way of other solutions?
51
The fundamental flaw, to me, in this approach is that there is absolutely nothing to be inferred from the fact that we hold judicial commissions that would enable us to answer any one of these questions better than the legislators to whose initial decision they were committed. Without any antecedent constitutional mandate, we have created on the premises of the Equal Protection Clause a school for legislators, whereby opinions of this Court are written to instruct them in a better understanding of how to accomplish their ordinary legislative tasks.
52
I would by no means suggest that this case is the first, and I fear it will not be the last, to import this sort of analysis into the Equal Protection Clause. As long ago as Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920), the Court declared that a classification to be valid under the Equal Protection Clause "must rest upon some ground of difference having a fair and substantial relation to the object of the legislation . . . ." Mr. Justice Pitney wrote the opinion of the Court in that case, and Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. While the quotation in context is far less objectionable than the just-quoted excerpt, it seems to me that there is little doubt that this case would be decided differently today.
53
The familiar quotation from Royster Guano comes from a time when the Court was giving a broad reading to both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to invalidate legislation in a way which, it is hoped, would not recur today. See, e. g., Concordia Ins. Co. v. Illinois, 292 U.S. 535, 54 S.Ct. 830, 78 L.Ed. 1411 (1934); Hartford Co. v. Harrison, 301 U.S. 459, 57 S.Ct. 838, 81 L.Ed. 1223 (1937). Every law enacted, unless it applies to all persons at all times and in all places, inevitably imposes sanctions upon some and declines to impose the same sanctions on others. But these inevitable concomitants of legislation have little or nothing to do with the Equal Protection Clause of the Fourteenth Amendment, unless they employ means of sorting people which the draftsmen of the Amendment sought to prohibit. I had thought that cases like McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961), in which the Court, speaking through Mr. Chief Justice Warren, said that "(a) statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it," and McDonald v. Board of Election, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969), in which the Court, again speaking through Mr. Chief Justice Warren, said that "(l)egislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them," would have put to rest the expansive notions of judicial review suggested in the above-quoted excerpt from Royster Guano.
54
Here the Illinois Legislature was dealing with a problem of intestate succession of illegitimates from their fathers, which, as the Court concedes, frequently presents difficult problems of proof. The provisions of Illinois Probate Act § 12, as most recently amended, alleviate some of the difficulties which previously stood in the way of such succession. The fact that the Act in question does not alleviate all of the difficulties, or that it might have gone further than it did, is to me wholly irrelevant under the Equal Protection Clause. The circumstances which justify the distinction between illegitimates and legitimates contained in § 12 are apparent with no great exercise of imagination; they are stated in the opinion of the Court, though they are there rejected as constitutionally insufficient. Since Illinois' distinction is not mindless and patently irrational, I would affirm the judgment of the Supreme Court of Illinois.
1
Ill.Rev.Stat. c. 3, § 12 (1973). Effective January 1, 1976, § 12 and the rest of the Probate Act of which it was a part were repealed and replaced by the Probate Act of 1975, Public Act 79-328. Section 12 has been replaced by Ill.Rev.Stat. c. 3, § 2-2 (1976). Although § 2-2 of the Probate Act of 1975 differs in some respects from the old § 12, that part of § 12 that is at issue here was recodified without material change in § 2-2. As the opinions below and the briefs refer to the disputed statutory provision as § 12, we will continue to refer to it that way.
2
Ill.Rev.Stat. c. 3, § 2-1(b) (1976).
3
There is some dispute over the status of Jessie Trimble in this litigation. It has been argued that she is in the case only as the next friend of her daughter. As the question is relevant only to the claim of sex discrimination against the mothers of illegitimate children, an issue we do not reach, we need not resolve the dispute.
4
App. 8.
5
Id., at 14.
6
See n. 1, supra.
7
See n. 2, supra.
8
For purposes of its decision, the court assumed that the children had been acknowledged. There is no mention of a prior adjudication of paternity.
9
App. 54-56.
10
Not presented here is the appellants' contention below that § 12 discriminates on the basis of race because of its alleged disproportionate impact on Negroes.
11
This case represents the 12th time since 1968 that we have considered the constitutionality of alleged discrimination on the basis of illegitimacy. The previous decisions are as follows: Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976); 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); Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974); New Jersey Welfare Rights Organization v. Cahill, 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543 (1973); Griffin v. Richardson, 346 F.Supp. 1226 (Md.), summarily aff'd, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972); Davis v. Richardson, 342 F.Supp. 588 (Conn.), summarily aff'd, 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971); 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).
12
See cases cited n. 11, supra. Labine v. Vincent, supra, is difficult to place in the pattern of this Court's equal protection decisions, and subsequent cases have limited its force as a precedent. In Weber v. Aetna Casualty & Surety Co., supra, we found in Labine a recognition that judicial deference is appropriate when the challenged statute involves the "substantial state interest in providing for 'the stability of . . . land titles and in the prompt and definitive determination of the valid ownership of property left by decedents' . . . ." 406 U.S., at 170, 92 S.Ct., at 1404, quoting Labine v. Vincent, 229 So.2d 449, 452 (La.App.1969). We reaffirm that view, but there is a point beyond which such deference cannot justify discrimination. Although the proposition is self-evident, Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), demonstrates that state statutes involving the disposition of property at death are not immunized from equal protection scrutiny. See also Eskra v. Morton, 524 F.2d 9, 13 (CA7 1975) (Stevens, J.). The more specific analysis of Labine is discussed throughout the remainder of this opinion.
13
This purpose is not apparent from the statute. Penalizing children as a means of influencing their parents seems inconsistent with the desire of the Illinois Legislature to make the intestate succession law more just to illegitimate children. Moreover, the difference in the rights of illegitimate children in the estates of their mothers and their fathers appears to be unrelated to the purpose of promoting family relationships. In this respect the Louisiana laws at issue in Labine were quite different. Those laws differentiated on the basis of the character of the child's illegitimacy. "Bastard children" were given no inheritance rights. "Natural children," who could be and were acknowledged under state law, were given limited inheritance rights, but still less than those of legitimate children. 401 U.S., at 537, and n. 13, 91 S.Ct., at 2763. The Louisiana categories are consistent with a theory of social opprobrium regarding the parents' relationships and with a measured, if misguided, attempt to deter illegitimate relationships.
14
Evidence of paternity may take a variety of forms, some creating more significant problems of inaccuracy and inefficiency than others. The States, of course, are free to recognize these differences in fashioning their requirements of proof. Our holding today goes only to those forms of proof which do not compromise the States' interests. This clearly would be the case, for example, where there is a prior adjudication or formal acknowledgment of paternity. Thus, we would have a different case if the state statute were carefully tailored to eliminate imprecise and unduly burdensome methods of establishing paternity.
15
In Levy the Court struck down a Louisiana wrongful-death statute that gave legitimate, but not illegitimate, children a cause of action for the wrongful death of their parents.
16
Appellees characterize the Illinois intestate succession law as a "statutory will." Because intent is a central ingredient in the disposition of property by will, the theory that intestate succession laws are "statutory wills" based on the "presumed intent" of the citizens of the State may have some superficial appeal. The theory proceeds from the initial premise that an individual could, if he wished, disinherit his illegitimate children in his will. Because the statute merely reflects the intent of those citizens who failed to make a will, discrimination against illegitimate children in intestate succession laws is said to be equally permissible. The term "statutory will," however, cannot blind us to the fact that intestate succession laws are acts of States, not of individuals. Under the Fourteenth Amendment this is a fundamental difference.
Even if one assumed that a majority of the citizens of the State preferred to discriminate against their illegitimate children, the sentiment hardly would be unanimous. With respect to any individual, the argument of knowledge and approval of the state law is sheer fiction. The issue therefore becomes where the burden of inertia in writing a will is to fall. At least when the disadvantaged group has been a frequent target of discrimination, as illegitimates have, we doubt that a State constitutionally may place the burden on that group by invoking the theory of "presumed intent." See Eskra v. Morton, 524 F.2d, at 12-14 (Stevens, J.).
17
The Illinois statute can be distinguished in several respects from the Louisiana statute in Labine. The discrimination in Labine took a different form, suggesting different legislative objectives. See, e. g., n. 13, supra. In its impact on the illegitimate children excluded from their parents' estates, the statute was significantly different. Under Louisiana law, all illegitimate children, "natural" and "bastard," were entitled to support from the estate of the deceased parent. 401 U.S., at 534, n. 2, 91 S.Ct., at 1018. Despite these differences, it is apparent that we have examined the Illinois statute more critically than the Court examined the Louisiana statute in Labine. To the extent that our analysis in this case differs from that in Labine the more recent analysis controls.
| 12
|
52 L.Ed.2d 4
97 S.Ct. 1440
430 U.S. 725
UNITED STATES, Petitioner,v.CONSUMER LIFE INSURANCE COMPANY. FIRST RAILROAD & BANKING COMPANY OF GEORGIA, Petitioner, v. UNITED STATES. UNITED STATES, Petitioner, v. PENN SECURITY LIFE INSURANCE COMPANY.
Nos. 75-1221, 75-1260 and 75-1285.
Argued Dec. 6, 1976.
Decided April 26, 1977.
Syllabus
Under § 801(a) of the Internal Revenue Code of 1954, an insurance company is considered a life insurance company for federal tax purposes if its life insurance reserves constitute more than 50% of its "total reserves," as that term is defined in § 801(c). Qualifying companies are accorded preferential tax treatment. The question here is how unearned premium reserves for accident and health (nonlife) insurance policies should be allocated between a primary insurer and a reinsurer for purposes of applying the 50% test. The unearned premium reserve is the basic insurance reserve in the casualty insurance business and an important component of "total reserves" under § 801(c)(2). The taxpayers contend that by virtue of certain reinsurance agreements ("treaties") they have maintained nonlife reserves below the 50% level. These treaties were of two basic types: (1) Treaty I, whereby the taxpayer served as reinsurer, and the "other party" was the primary insurer or ceding company; and (2) Treaty II, whereby the taxpayer served as the primary insurer and ceded a portion of the business to the "other party," the reinsurer. Both types of treaties provided that the other party would hold the premium dollars derived from accident and health business until such time as the premiums were "earned," i. e., attributable to the insurance protection provided during the portion of the policy term already elapsed. The other party also set up on its books the corresponding unearned premium reserve, relieving the taxpayer of that requirement, even though the taxpayer assumed all substantial insurance risks. In each case, the taxpayer and the other party reported their affairs annually in this way to both the Internal Revenue Service and the appropriate state insurance departments. Despite the state authorities' acceptance of these annual statements, the Government argues that the unearned premium reserves must be allocated or attributed for tax purposes from the other parties to the taxpayers, with the result that the taxpayers fail the 50% test and thus are disqualified from preferential tax treatment, primarily because, in the Government's view, § 801 embodies a rule that "insurance reserves follow the insurance risk." Held :
1. The reinsurance treaties served valid business purposes and, contrary to the Government's argument, were not sham transactions without economic substance. Pp. 736-739.
2. Since the taxpayers neither held the unearned premium dollars nor set up the corresponding unearned premium reserves, and since that treatment was in accord with customary practice as policed by the state regulatory authorities, § 801(c)(2) does not permit attribution to the taxpayers of the reserves held by the other parties to the reinsurance treaties. Pp. 739-750.
(a) The language of § 801(c)(2) does not suggest that Congress intended a "reserves follow the risk" rule to govern determinations under § 801. Pp. 740-741.
(b) Nor does the legislative history of § 801 furnish support for the Government's interpretation. Pp. 742-745.
(c) Section 820 of the Code, prescribing the tax treatment of modified coinsurance contracts, affords an unmistakable indication that Congress did not intend § 801 to embody a "reserves follow the risk" rule. Pp. 745-750.
3. Nor is attribution of unearned premium reserves to the taxpayers required under § 801(c)(3), counting in total reserves "all other insurance reserves required by law." There is no indication that state statutory law in these cases required the taxpayers to set up and maintain the contested unearned premium reserves, especially since the insurance departments of the affected States consistently accepted annual reports showing reserves held as the taxpayers claim they should be. Pp. 750-752.
No. 75-1221, 524 F.2d 1167, 207 Ct.Cl. 638, and No. 75-1285, 524 F.2d 1155, 207 Ct.Cl. 594, affirmed; No. 75-1260, 5 Cir., 514 F.2d 675, reversed and remanded.
1
Stuart A. Smith, Washington, D. C., for the United States.
2
John B. Jones, Jr., Washington, D. C., for Penn Security Life Insurance Company.
3
James R. Harper, Atlanta, Ga., for the First Railroad & Banking Company of Georgia.
4
E. Michael Masinter, Atlanta, Ga., for the Consumer Life Insurance Company.
5
Mr. Justice POWELL delivered the opinion of the Court.
6
The question for decision is how unearned premium reserves for accident and health (A&H) insurance policies should be allocated between a primary insurer and a reinsurer for federal tax purposes. We granted certiorari in these three cases to resolve a conflict between the Circuits and the Court of Claims. 425 U.S. 990, 96 S.Ct. 2200, 48 L.Ed.2d 814 (1976).
7
* An insurance company is considered a life insurance company under the Internal Revenue Code if its life insurance reserves constitute more than 50% of its total reserves, IRC 1954, § 801(a), 26 U.S.C. § 801(a),1 and qualifying companies are accorded preferential tax treatment.2 A company close to the 50% line will ordinarily achieve substantial tax savings if it can increase its life insurance reserves or decrease nonlife reserves so as to come within the statutory definition.
8
The taxpayers here are insurance companies that assumed both life insurance risks and A&H nonlife risks. The dispute in these cases is over the computation for tax purposes of nonlife reserves. The taxpayers contend that by virtue of certain reinsurance agreements or treaties, to use the term commonly accepted in the insurance industry they have maintained nonlife reserves below the 50% level. The Government argues that the reinsurance agreements do not have that effect, that the taxpayers fail to meet the 50% test, and that accordingly they do not qualify for preferential treatment.3
9
Specifically the dispute is over the unearned premium reserve, the basic insurance reserve in the casualty insurance business and an important component of "total reserves," as that term is defined in § 801(c).4 A&H policies of the type involved here generally are written for a two- or three-year term. Since policyholders typically pay the full premium in advance, the premium is wholly "unearned" when the primary insurer initially receives it. See Rev. Rul. 61-167, 1961-2 Cum. Bull. 130, 132. The insurer's corresponding liability can be discharged in one of several ways: granting future protection by promising to pay future claims; reinsuring the risk with a solvent reinsurer; or returning a pro rata portion of the premium in the event of cancellation. Each method of discharging the liability may cost money. The insurer thus establishes on the liability side of its accounts a reserve, as a device to help assure that the company will have the assets necessary to meet its future responsibilities. See O. Dickerson, Health Insurance 604-605 (3d ed. 1968) (hereafter Dickerson). Standard accounting practice in the casualty field, made mandatory by all state regulatory authorities, calls for reserves equal to the gross unearned portion of the premium.5 A simplified example may be useful: A policyholder takes out a three-year A&H policy for a premium, paid in advance, of $360. At first the total $360 is unearned, and the insurer's books record an unearned premium reserve in the full amount of $360. At the end of the first month, one thirty-sixth of the term has elapsed, and $10 of the premium has become "earned."6 The unearned premium reserve may be reduced to $350. Another $10 reduction is permitted at the end of the second month, and so on.
II
10
The reinsurance treaties at issue here assumed two basic forms.7 Under the first form, Treaty I, the taxpayer served as reinsurer, and the "other party" was the primary insurer or "ceding company," in that it ceded part or all of its risk to the taxpayer. Under the second form, Treaty II, the taxpayer served as the primary insurer and ceded a portion of the business to the "other party," that party being the reinsurer. Both types of treaties provided that the other party would hold the premium dollars derived from A&H business until such time as the premiums were earned that is, attributable to the insurance protection provided during the portion of the policy term that already had elapsed. The other party also set up on its books the corresponding unearned premium reserve, relieving the taxpayer of that requirement. In each case, the taxpayer and the other party reported their affairs annually in this fashion to both the Internal Revenue Service and the appropriate state insurance departments. These annual statements were accepted by the state authorities without criticism. Despite this acceptance, the Government argues here that the unearned premium reserves must be allocated or attributed for tax purposes from the other parties, as identified above, to the taxpayers,8 thereby disqualifying each of the taxpayers from preferential treatment.
11
No. 75-1221, United States v. Consumer Life Ins. Co. In 1957 Southern Discount Corp. was operating a successful consumer finance business. Its borrowers, as a means of assuring payment of their obligations in the event of death or disability, typically purchased term life insurance and term A&H insurance at the time they obtained their loans. This insurance commonly known as credit life and credit A&H is usually coextensive in term and coverage with the term and amount of the loan. The premiums are generally paid in full at the commencement of coverage, the loan term ordinarily running for two or three years. Prohibited from operating in Georgia as an insurer itself, Southern served as a sales agent for American Bankers Life Insurance Co., receiving in return a sizable commission for its services.
12
With a view to participating as an underwriter and not simply as agent in this profitable credit insurance business, Southern formed Consumer Life Insurance Co., the taxpayer here, as a wholly owned subsidiary incorporated in Arizona, the State with the lowest capital requirements for insurance companies. Although Consumer Life's low capital precluded it from serving as a primary insurer under Georgia law, it was nonetheless permitted to reinsure the business of companies admitted in Georgia.
13
Consumer Life therefore negotiated the first of two reinsurance treaties with American Bankers. Under Treaty I, Consumer Life served as reinsurer and American Bankers as the primary insurer or ceding company. Consumer Life assumed 100% of the risks on credit life and credit A&H business originating with Southern, agreeing to reimburse American Bankers for all losses as they were incurred. In return Consumer Life was paid a premium equivalent to 871/2% of the premiums received by American Bankers.9 But the mode of payment differed as between life and A&H policies. With respect to life insurance policies, American Bankers each month remitted to the reinsurer Consumer Life the stated percentage of all life insurance premiums collected during the prior month. With respect to A&H coverage, however, American Bankers each month remitted the stated percentage of the A&H premiums earned during the prior month, the remainder to be paid on a pro rata basis over the balance of the coverage period.
14
Again an example might prove helpful. Assume that a policyholder buys from American Bankers on January 1 a three-year credit life policy and a three-year credit A&H policy, paying on that date a $360 premium for each policy. On February 1, under Treaty I, American Bankers would be obligated to pay Consumer Life 871/2% of $360 for reinsurance of life risks. This represents the total life reinsurance premium; there would be no further payments for life reinsurance. But for A&H reinsurance, American Bankers would remit on February 1 only the stated percentage of $10, since only $10 would have been earned during the prior month. It would remit the same amount on March 1 for A&H coverage provided during February, and so on for a total of 36 months.
15
Treaty I permitted either party to terminate the agreement upon 30 days' notice. But termination was to be prospective; reinsurance coverage would continue on the same terms until the policy expiration date for all policies already executed. This is known as a "runoff provision."
16
Because it held the unearned A&H premium dollars, and also under an express provision in Treaty I, American Bankers set up an unearned premium reserve equivalent to the full value of the premiums. Meantime Consumer Life, holding no unearned premium dollars, established on its books no unearned premium reserve for A&H business.10 Annual statements filed with the state regulatory authorities in Arizona and Georgia reflected this treatment of reserves, and the statements were accepted without challenge or disapproval.
17
By 1962 Consumer Life had accumulated sufficient surplus to qualify under Georgia law as a primary insurer. Treaty I was terminated, and Southern began placing its credit insurance business directly with Consumer Life. The parties then negotiated Treaty II, under which American Bankers served as reinsurer of the A&H policies issued by Consumer Life.11 Ultimately Consumer Life retained the lion's share of the risk, but Treaty II was set up in such a way that American Bankers held the premium dollars until they were earned. This required rather complicated contractual provisions, since Consumer Life as primary insurer did receive the A&H premium dollars initially.
18
Roughly described, Treaty II provided as follows: Consumer Life paid over the A&H premiums when they were received. American Bankers immediately returned 50% of this sum as a ceding commission meant to cover Consumer Life's initial expenses. Then, at the end of each quarter, American Bankers paid to Consumer Life "experience refunds" based on claims experience. If there were no claims, American Bankers would refund 47% of the total earned premiums. If there were claims (and naturally there always were), Consumer Life received 47% less the sums paid to meet claims. It is apparent that American Bankers would never retain more than 3% of the total earned premiums for the quarter. Only if claims exceeded 47% would this 3% be encroached, but even in that event Treaty II permitted American Bankers to recoup its losses by reducing the experience refund in later quarters. Actual claims experience never approached the 47% level.
19
Again, since American Bankers held the unearned premiums, it set up the unearned premium reserve on its books. Consumer Life, which initially had set up such a reserve at the time it received the premiums, took credit against them for the reserve held by American Bankers. Annual statements filed by both companies consistently reflected this treatment of reserves under Treaty II, and at no time did state authorities take exception.12
20
The taxable years 1958 through 1960, and 1962 through 1964, are at issue here. For each of those years Consumer Life computed its § 801 ratio based on the reserves shown on its books and accepted by the state authorities. According to those figures, Consumer Life qualified for tax purposes as a life insurance company. The Commissioner of Internal Revenue determined, however, that the A&H reserves held by American Bankers should be attributed to Consumer Life, thereby disqualifying the latter from favorable treatment. Consumer Life paid the deficiency assessed by the Commissioner and brought suit for a refund. The Court of Claims, disagreeing with its trial judge, held for the taxpayer.
B
21
No. 75-1260, First Railroad & Banking Co. of Georgia v. United States. The relevant taxable entity in this case is First of Georgia Life Insurance Co., a subsidiary of the petitioner First Railroad & Banking Co. of Georgia. Georgia Life was party to a Treaty II type agreement,13 reinsuring its A&H policies with an insurance company, another subsidiary of First Railroad.14 On the basis of the reserves carried on its books and approved by state authorities, Georgia Life qualified as a life insurance company for the years at issue here, 1961-1964. Consequently First Railroad excluded Georgia Life's income from its consolidated return, pursuant to § 1504(b)(2) of the Code. The Commissioner determined that Georgia Life did not qualify for life insurance company status or exclusion from the consolidated return, and so assessed a deficiency. First Railroad paid and sued for a refund. It prevailed in the District Court, but the Court of Appeals for the Fifth Circuit reversed, relying heavily on Economy Finance Corp. v. United States, 501 F.2d 466 (CA7 1974), cert. denied, 420 U.S. 947, 95 S.Ct. 1328, 43 L.Ed.2d 425, rehearing denied, 421 U.S. 922, 95 S.Ct. 1590, 43 L.Ed.2d 790 (1975), motion for leave to file second petition for rehearing pending, No. 74-701.
C
22
No. 75-1285, United States v. Penn Security Life Ins. Co. Penn Security Life Ins. Co., a Missouri corporation, is, like Consumer Life, a subsidiary of a finance company. Under three separate Treaty I type agreements, it reinsured the life and A&H policies of three unrelated insurers during the years in question, 1963-1965. The other companies reported the unearned premium reserves, and the Missouri authorities approved this treatment. Because one of the three treaties did not contain a runoff provision like that present in Consumer Life, the Government conceded that the reserves held by that particular ceding company should not be attributed to the taxpayer. But the other two treaties were similar in all relevant respects to Treaty I in Consumer Life. After paying the deficiencies assessed by the Commissioner, Penn Security sued for a refund in the Court of Claims. Both the trial judge and the full Court of Claims ruled for the taxpayer.
III
23
The Government commences its argument by suggesting that these reinsurance agreements were sham transactions without economic substance and therefore should not be recognized for tax purposes. See, e. g., Gregory v. Helvering, 293 U.S. 465, 470, 55 S.Ct. 266, 268, 79 L.Ed. 596 (1935); Knetsch v. United States, 364 U.S. 361, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960). We do not think this is an accurate characterization.
24
Both taxpayers who were parties to Treaty I agreements entered into them only after arm's-length negotiation with unrelated companies. The ceding companies gave up a large portion of premiums, but in return they had recourse against the taxpayers for 100% of claims. The ceding companies were not just doing the taxpayers a favor by holding premiums until earned. This delayed payment permitted the ceding companies to invest the dollars, and under the treaties they kept all resulting investment income. Nor were they mere "paymasters," as the Government contends, for indemnity reinsurance of this type does not relieve the ceding company of its responsibility to policyholders. Had the taxpayers become insolvent, the insurer still would have been obligated to meet claims.15
25
Treaty II also served most of the basic business purposes commonly claimed for reinsurance treaties. See W. Hammond, Insurance Accounting Fire & Casualty 86 (2d ed. 1965); Dickerson 563-564. It reduced the heavy burden on the taxpayer's surplus caused by the practice of computing casualty reserves on the basis of gross unearned premiums even though the insurer may have paid out substantial sums in commissions and expenses at the commencement of coverage. By reducing this drain on surplus, the taxpayer was able to expand its business, resulting in a broader statistical base that permitted more accurate loss predictions.16 Through Treaty II each taxpayer associated itself with a reinsurance company more experienced in the field. Moreover, under Treaty II the taxpayers were shielded against a period of catastrophic losses. Even though the reinsurer would eventually recapture any such deep losses, it would be of substantial benefit to the ceding company to spread those payments out over a period of months or years. Both courts below that passed on Treaty II agreements found expressly that the treaties served valid and substantial nontax purposes.17 Tax considerations well may have had a good deal to do with the specific terms of the treaties, but even a "major motive" to reduce taxes will not vitiate an otherwise substantial transaction. United States v. Cumberland Pub. Serv. Co., 338 U.S. 451, 455, 70 S.Ct. 280, 282, 94 L.Ed. 251 (1950).18
IV
26
Whether or not these were sham transactions, however, the Government would attribute the contested unearned premium reserves to the taxpayers because it finds in § 801(c)(2) a rule that "insurance reserves follow the insurance risk." Brief for United States 34. This assertion, which forms the heart of the Government's case, is based on the following reasoning. Section 801 provides a convenient test for determining whether a company qualifies for favorable tax treatment as a life insurance company, a test determined wholly by the ratio of life reserves to total reserves. Reserves, under accepted accounting and actuarial standards, represent liabilities. Although often carelessly referred to as "reserve funds," or as being available to meet policyholder claims, reserves are not assets; they are entered on the liability side of the balance sheet. Under standard practice they are mathematically equivalent to the gross unearned premium dollars already paid in, but conceptually the reserve a liability is distinct from the cash asset. This much of the argument is indisputably sound.
27
The Government continues: Since a reserve is a liability, it is simply an advance indicator of the final liability for the payment of claims. The company that finally will be responsible for paying claims the one that bears the ultimate risk should therefore be the one considered as having the reserves. In each of these cases, the Government argues, it was the taxpayer that assumed the ultimate risk. The other companies were merely paymasters holding on to the premium dollars until earned in return for a negligible percentage of the gross premiums.
A.
28
We may assume for present purposes that the taxpayers did take on all substantial risks under the treaties.19 And in the broadest sense reserves are, of course, set up because of future risks. Cf. Helvering v. Le Gierse, 312 U.S. 531, 539, 61 S.Ct. 646, 649, 85 L.Ed. 996 (1941). The question before us, however, is not whether the Government's position is sustainable as a matter of abstract logic.20 Rather it is whether Congress intended a "reserves follow the risk" rule to govern determinations under § 801.
29
There is no suggestion in the plain language of the section that this is the case. See nn. 1 and 4, supra. If anything, the language is a substantial obstacle to accepting the Government's position. The word "risk" does not occur. Moreover, in § 801(c)(2) Congress used the phrase "unearned premiums" rather than "unearned premium reserve." The Government argues that, taken in context, "unearned premiums" must be regarded as referring to reserves to the liability account for unearned premium reserves and not the asset represented by the premium dollars. We agree that the reference is to reserves, but still the use of the truncated phrase suggests that Congress intended a mechanical application of the concept. In other words, this phrase suggests that in Congress' view unearned premium reserves always would be found in the same place as the unearned premiums themselves. If so, reserves would follow mechanically the premium dollars, as taxpayers contend, and would not necessarily follow the risk.
B
30
The rather sparse legislative history furnishes no better support for the Government's position. Under the early Revenue Acts, all insurance companies were taxed on the same basis as other corporations. Both investment income and premium or underwriting income were included in gross income, although there was a special deduction for additions to reserves. See, e. g., Revenue Act of 1918, § 234(a)(10), 40 Stat. 1079.
31
By 1921 Congress became persuaded that this treatment did not accurately reflect the nature of the life insurance enterprise, since life insurance is often a form of savings for policyholders, similar in some respects to a bank deposit. See Hearings on H.R. 8245 before the Senate Committee on Finance, 67th Cong., 1st Sess., 83 (1921) (testimony of Dr. T. S. Adams, Tax Adviser to Treasury Department). Under this view, premium receipts "were not true income (to the life insurance company) but were analogous to permanent capital investment." Helvering v. Oregon Mutual Life Ins. Co., 311 U.S. 267, 269, 61 S.Ct. 207, 208, 85 L.Ed. 180 (1940). The 1921 Act therefore provided, for the first time, that life insurance companies would be taxed on investment income alone and not on premium receipts. Revenue Act of 1921, §§ 242-245, 42 Stat. 261. The same rationale did not apply to other forms of insurance, and Congress continued to tax insurance companies other than life on both underwriting and investment income. §§ 246-247.
32
The 1921 Act was thus built on the assumption that important differences between life and nonlife insurance called for markedly different tax treatment. Strict adherence to this policy rationale would dictate that any company insuring both types of risks be required to segregate its life and nonlife business so that appropriate tax rules could be applied to each. Congress considered this possibility but chose instead a more convenient rule of thumb,21 the 50% reserve ratio test.22 The Treasury official primarily responsible for the 1921 Act explained:
33
"Some companies mix with their life business accident and health insurance. It is not practicable for all companies to disassociate those businesses so that we have assumed that if this accident and health business was more than 50 per cent of their business, as measured by their reserves, it could not be treated as a life insurance company. On the other hand, if their accident and health insurance were incidental and represented less than 50 per cent of their business we treated them as a life insurance company." 1921 Hearings, supra, at 85 (testimony of Dr. T. S. Adams).
34
This passage constitutes the only significant reference to the test in the 1921 deliberations.
35
In succeeding years controversy developed over the preferential treatment enjoyed by life insurance companies. There were claims that they were not carrying their fair share of the tax burden. There were charges that stock companies were favored over mutuals, or vice versa. There was a nagging question over just how to compute a proper deduction for additions to reserves. Congress tried a host of different formulas to ameliorate these problems. See H. R. Rep. No. 34, 86th Cong., 1st Sess., 2-7 (1959); S.Rep. No. 291, 86th Cong., 1st Sess., 3-11 (1959); U.S.Code Cong. & Admin.News 1959, p. 1575; Alinco Life Ins. Co. v. United States, 373 F.2d 336, 345-349, 178 Ct.Cl. 813, 831-837 (1967). But throughout these years the 50% test was not significantly changed.23
36
In 1959 Congress passed legislation that finally established a permanent tax structure for life insurance companies. Life Insurance Company Income Tax Act of 1959, 73 Stat. 112. For the first time since 1921, not only investment income but also a portion of underwriting income was made subject to taxation.24 But even as Congress was rewriting the substantive provisions for taxing life insurance companies, it did not, despite occasional calls for change,25 make any relevant alterations in § 801. Moreover, the few references to that provision in the committee reports shed little light on the issue presented here.26 They contain no explicit or implicit support for a rule that reserves follow the risk.
C
37
More important than anything that appears in hearings, reports, or debates is a provision added in 1959, § 820, concerning modified coinsurance contracts between life insurance companies.27 This section, although designed to deal with a problem different from the one presented here, is simply unintelligible if Congress thought that § 801 embodied an unvarying rule that reserves follow the risk.
38
A conventional coinsurance contract is a particular form of indemnity reinsurance.28 The reinsurer agrees to reimburse the ceding company for a stated portion of obligations arising out of the covered policies. In return, the reinsurer receives a similar portion of all premiums received by the insurer, less a ceding commission to cover the insurer's overhead. The reinsurer sets up the appropriate reserve for its proportion of the obligation and, as is customary, the ceding company takes credit against its reserves for the portion of the risks reinsured.
39
A modified coinsurance contract is a further variation in this esoteric area of insurance. As explained before the Senate Finance Committee, a modified form of coinsurance developed because some major reinsurers were not licensed to do business in New York, and New York did not permit a ceding company to take credit against its reserves for business reinsured with unlicensed companies. Hearings on H.R. 4245 before the Senate Committee on Finance, 86th Cong., 1st Sess., 608 (1959) (statement of Henry F. Rood). Denial of credit places the ceding company in an undesirable position. It has depleted its assets by paying to the reinsurer the latter's portion of premiums, but its liability account for reserves remains unchanged. Few companies would accept the resulting drain on surplus, and unlicensed reinsurers wishing to retain New York business began offering a modified form of coinsurance contract. Obligations would be shared as before, but the ceding company, which must in any event maintain 100% of the reserves, would be permitted to retain and invest the assets backing the reserves. As consideration for this right of retention, modified coinsurance contracts require the ceding company to pay to the reinsurer, under a complicated formula, the investment income on the reinsurer's portion of the investments backing the reserve. See id., at 609; E. Wightman, Life Insurance Statements and Accounts 150-151 (1952); D. McGill, Life Insurance 435-440 (rev. ed. 1967).
40
The 1959 legislation, as it passed the House, contained no special treatment for these modified contracts. The income involved therefore would have been taxed twice, once as investment income to the ceding company and then as underwriting income to the reinsurer.29 The Senate thought this double taxation inequitable, and therefore added § 820, to which the House agreed. That section provides that for tax purposes modified coinsurance contracts shall be treated the same as conventional coinsurance contracts, if the contracting parties consent to such treatment. For consenting companies Congress not only provided that gross investment income shall be treated as if it were received directly (in appropriate share) by the reinsurer, § 820(c)(1), but also expressly declared that the reserves "shall be treated as a part of the reserves of the reinsurer and not of the reinsured." § 820(c)(3).
41
Under a modified coinsurance contract the reinsurer bears the risk on its share of the obligations. Thus, if § 801 mandates that reserves follow the risk, the reinsurer could not escape being considered as holding its share of the reserve. Section 820(c)(3), providing for attribution of the reserves to the reinsurer, would be an elaborate redundancy. And although § 820(a)(2) specifies that attribution under § 820 is optional, requiring the consent of the parties, the parties would in fact have no option at all. Plainly § 820 is incompatible with a view that § 801 embodies a rule that reserves follow the risk.30
42
The Commissioner himself, interpreting § 801 in light of § 820, has implicitly acknowledged that reserves do not follow the risk. Rev.Rul. 70-508, 1970-2 Cum.Bull. 136. Advice was requested by the parties to a modified coinsurance contract who had not elected the special treatment available under § 820. The ceding company had carried the life insurance reserves on its books, although the reinsurer bore the ultimate risk. The ceding company wanted to know whether it could count those reserves in its ratio for purposes of § 801. Relying on § 801(b) and the Treasury Regulations implementing it, the Commissioner ruled that it could. A "reserves follow the risk" rule would have dictated precisely the opposite result.
D
43
Section 820 affords an unmistakable indication that § 801 does not impose the "reserves follow the risk" rule. Instead, Congress intended to rely on customary accounting and actuarial practices, leaving, as § 820 makes evident, broad discretion to the parties to a reinsurance agreement to negotiate their own terms. This does not open the door to widespread abuse. "Congress was aware of the extensive, continuing supervision of the insurance industry by the states. It is obvious that subjecting the reserves to the scrutiny of the state regulatory agencies is an additional safeguard against overreaching by the companies." Mutual Benefit Life Ins. Co. v. Commissioner of Internal Revenue, 488 F.2d 1101, 1108 (CA3 1973), cert. denied, 419 U.S. 882, 95 S.Ct. 148, 42 L.Ed.2d 122 (1974). See Lamana-Panno-Fallo Industrial Ins. Co. v. Commissioner of Internal Revenue, 127 F.2d 56, 58-59 (CA5 1942); Alinco Life Ins. Co. v. United States, 373 F.2d, at 345, 178 Ct.Cl., at 831. See also Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 429-433, 66 S.Ct. 1142, 1154-1157, 90 L.Ed. 1342 (1946); 15 U.S.C. § 1011 (McCarran-Ferguson Act). In presenting the 1959 legislation to the full House, members of the committee that drafted the bill were careful to underscore the continuing primacy of state regulation, with specific reference to the question of reserves.31
44
In two of the cases before us the courts below expressly found that the reserves were held in accordance with accepted actuarial and accounting standards,32 while the third court did not address the issue. In all three, it was found that no state insurance department required any change in the way the taxpayers computed and reported their reserves.33 Since the taxpayers neither held the unearned premium dollars nor set up the corresponding unearned premium reserves, and since that treatment was in accord with customary practice as policed by the state regulatory authorities, we hold that § 801(c)(2) does not permit attribution to the taxpayers of the reserves held by the other parties to the reinsurance treaties.34
V
45
The Government argues that even if attribution of reserves is not required under § 801(c)(2), attribution is required under § 801(c)(3), counting in total reserves "all other insurance reserves required by law." See n. 4, supra. Under state statutory law, the Government suggests, these taxpayers were required to set up and maintain the full unearned premium reserves.
46
Our attention is drawn to no statute in any of the affected States that expressly requires this result. Instead the Government returns to its main theme and asserts, in essence, that certain general state statutory provisions embody the doctrine that reserves follow the risk.35 We would find it difficult to infer such a doctrine from the statutory provisions relied on by the Government even if there were no other indications to the contrary. But other indications are compelling. The insurance departments of the affected States consistently accepted annual reports showing reserves held as the taxpayers claim they should be.36 It is well established that the consistent construction of a statute "by the agency charged with its enforcement is entitled to great deference by the courts." NLRB v. Boeing Co., 412 U.S. 67, 75, 93 S.Ct. 1952, 1957, 36 L.Ed.2d 752 (1973). See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210, 93 S.Ct., 364, 367, 34 L.Ed.2d 415 (1972); Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1965); Skidmore v. Swift & Co., 323 U.S. 134, 139-140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). This is no less the rule when federal courts are interpreting state law administered by state regulatory officials,37 at least where, as here, there is no reason to think that the state courts would construe the statute differently. We find no basis for holding that taxpayers were required by law, within the meaning of § 801(c)(3), to maintain the disputed unearned premium reserves.38
VI
47
For the reasons stated, we hold for the taxpayers. The judgments in Nos. 75-1221 and 75-1285 are affirmed. The judgment in No. 75-1260 is reversed, and the case is remanded for further proceedings consistent with this opinion.
48
It is so ordered.
49
Mr. Justice WHITE, with whom Mr. Justice MARSHALL joins, dissenting.
50
The Court today makes it possible for insurance companies doing almost no life insurance business to qualify for major tax advantages Congress meant to give only to companies doing mostly life insurance business. I cannot join in the creation of this truckhole in the law of insurance taxation.
51
* Congress has chosen to give life insurance companies extremely favorable federal income tax treatment. The reason for this preferential tax treatment is the nature of life insurance risks. They are long-term risks that increase over the period of coverage and that will ultimately require the payment of a claim. Companies that assume life insurance risks therefore must accumulate substantial reserve funds to meet future claims; these reserve funds are invested, and a large portion of the investment income is then added to the funds already accumulated. In recognition of the special characteristics of life insurance risks, Congress has allowed a substantial portion of life insurance company income to escape taxation.1
52
Other types of insurance, such as the accident and health (A&H) coverage provided by the taxpayers in these cases, do not involve the assumption of long-term risks that inevitably will require the payment of benefits at some point in the relatively distant future. Consequently, Congress has provided for taxation of such nonlife insurance companies in much the same manner as any other corporation. See Internal Revenue Code of 1954, §§ 831, 832, 26 U.S.C. §§ 831, 832. Many companies mix nonlife insurance business with their life insurance business, and Congress has decided to tax such "mixed" enterprises according to whether the majority of the company's business is life or nonlife:
53
"(I)f this accident and health business was more than 50 per cent of their business, as measured by their reserves, it could not be treated as a life insurance company. On the other hand, if their accident and health insurance were incidental and represented less than 50 per cent of their business we treated them as a life insurance company." Hearings on H.R. 8245 before the Senate Committee on Finance, 67th Cong., 1st Sess., 85 (1921) (testimony of Dr. T. S. Adams, Tax Adviser to the Treasury Department), also quoted ante, at 743.
54
In order to measure the proportion of life insurance business done by an insurance company, Congress used the fraction of total insurance reserves consisting of life insurance reserves, as defined by § 801. The purpose of this reserve-ratio test is, of course, to determine whether a majority of an insurance company's business is life insurance.2
55
More than 50% of the business of the taxpayer insurance companies for the taxable years in question here was nonlife rather than life insurance business, as measured by the reserves accumulated to cover all life and nonlife risks assumed by the taxpayers.3 The taxpayers sought to obtain preferential treatment as life insurance companies under § 801 by arranging with other companies to hold the necessary reserves for the taxpayers. I agree with the majority that these arrangements had economic substance in that the companies holding the reserves performed two additional functions for the taxpayers: a clearinghouse function, collecting premiums and paying out claims, and a financing function, lending the difference between the reserves established for the policy and the premiums, less selling expenses, received from the policyholder. See ante, at 737-738, and n. 16; Economy Finance Corp. v. United States, 501 F.2d 466, 477-478 (CA7 1974), cert. denied, 420 U.S. 947, 95 S.Ct. 1328, 43 L.Ed.2d 425, rehearing denied, 421 U.S. 922, 95 S.Ct. 1590, 43 L.Ed.2d 790 (1975), motion for leave to file second petition for rehearing pending, No. 74-701. But I cannot agree that these arrangements enable the taxpayers to qualify for tax savings Congress intended to give only to insurance companies whose predominant business is the assumption of insurance risks.
II
56
The majority holds that the taxpayers may obtain these tax savings despite the predominantly nonlife character of their insurance business, "(s)ince the taxpayers neither held the unearned (A&H) premium dollars nor set up the corresponding unearned premium reserves, and since that treatment was in accord with customary practice as policed by the state regulatory authorities . . . ." Ante, at 750. This rule would permit an A&H insurance company to qualify for preferential treatment as a life insurance company by selling a few life policies and then arranging, by means similar to those employed here, for a third party to hold the A&H premiums and the corresponding reserves. Under the majority's rule, these reserves held by the third party to cover risks assumed by the A&H company would not be attributed to that company; its total reserves for purposes of § 801 would consist almost entirely of whatever life insurance reserves it held; and the company would satisfy the reserve-ratio test.4 I cannot believe that Congress intended to allow an insurance company to shelter its nonlife insurance income from taxation merely by assuming an incidental amount of life insurance risks and engaging another company to hold its reserves through arrangements with the requisite economic substance and state regulatory approval to satisfy the standard announced by the majority today.
57
The language of § 801 and its accompanying regulations does not require such a result. Section 801(a) provides that any insurance company may qualify as a life insurance company "if its life insurance reserves . . . comprise more than 50 percent of its total reserves . . ." (emphasis added); § 801(c)(2) includes "unearned premiums" in the definition of "total reserves" for purposes of § 801(a). It is clear that, as required by Treasury Regulations, unearned premium reserves were set up to "cover the cost of carrying the (A&H) insurance risk for the period for which the premiums have been paid in advance," Treas. Reg. § 1.801-3(e) (1972), and that these reserves "have been actually held during the taxable year(s)" at issue here. § 1.801-5(a)(3) (1960). The question is whether the A&H reserves set up to cover risks assumed by each taxpayer are considered to be "its" reserves even though they are in the physical possession and under the nominal control of another company.
58
The Regulations explicitly answer this question in the affirmative for life insurance reserves:
59
"(Life insurance) reserves held by the company with respect to the net value of risks reinsured in other solvent companies . . . shall be deducted from the company's life insurance reserves. For example, if an ordinary life policy with a reserve of $100 is reinsured in another solvent company on a yearly renewable term basis, and the reserve on such yearly renewable term policy is $10, the reinsured company shall include $90 ($100 minus $10) in determining its life insurance reserves." § 1.801-4(a)(3) (1972). (Emphasis added.)
60
Accord, § 1.801-4(d)(5). Thus, for purposes of the reserve-ratio test of § 801, life insurance reserves are attributable to the company assuming the risk under a reinsurance agreement. The same attribution rule should be used in calculating the denominator of the reserve ratio (life plus nonlife reserves) as for the numerator (life reserves); as the majority recognizes, ante, at 748, n. 30, there is no reason not to adopt a consistent approach to allocation of both life and nonlife reserves in determining life insurance company status.
61
The rule that life and nonlife reserves are attributable to the risk bearer reflects the familiar principles of cases such as Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731 (1930), where income earned by a taxpayer was attributed to him notwithstanding a contractual arrangement under which the income was paid over to a third party. In that case, the salary derived from the taxpayer's business activity was treated as "his" income even though he did not receive or hold it. Similarly, the reserves applicable to the A&H insurance business of each of the taxpayers here should be treated as "its" reserves. Cf. Commissioner of Internal Revenue v. Hansen, 360 U.S. 446, 79 S.Ct. 1270, 3 L.Ed.2d 1360 (1959).5
III
62
The majority insists nonetheless that these predominantly nonlife insurance companies be given preferential tax treatment intended only for predominantly life insurance companies. To reach this result, the majority relies, not on the language or legislative history of the § 801 reserve-ratio test, but on § 820 of the Code, which was added nearly 40 years after the reserve-ratio test was adopted and which gives life insurance companies the choice of whether to have reserves under certain "modified coinsurance contracts" attributed to the reinsurer who bears the risk or to the reinsured who holds the reserves under the contract. See ante, at 745-748. The majority finds this section at once "redundan(t)" and "incompatible" with the Commissioner's interpretation of § 801. Ante, at 748. What the majority overlooks is that § 820 applies only to companies that have already qualified as life insurance companies by virtue of § 801; it prescribes, not how those companies qualify for life insurance company status, but rather how they are to be taxed once they have qualified for such status specifically, how they can avoid double taxation on investment income received by the reinsurer but paid over to the reinsured pursuant to the particular type of reinsurance contract defined in § 820(b). The option to attribute reserves for these contracts either to the reinsurer or the reinsured is given only to life insurance companies which qualify under § 801, see § 820(b)(1), and is expressly made inapplicable "for purposes of section 801" in determining whether they so qualify, § 820(a)(1).
63
The majority notes that § 820(a)(1) denies insurance companies the choice of how to allocate their modified coinsurance contract reserves for purposes of the § 801 reserve-ratio test, but interprets this exception to § 820 to "(mean) that for purposes of § 801 the reserves are invariably treated as held by the ceding company . . . ." Ante, at 1452 n. 30. This "explanation" simply assumes the conclusion that the majority is attempting to justify: What the parties to these cases are arguing about is whether for § 801 purposes reserves are invariably attributable to the company holding them rather than to the company bearing the risks that the reserves were set up to cover. Mandatory attribution to the risk bearer under § 801 is just as consistent with the inapplicability of the § 820 option as is mandatory attribution to the holder of those reserves, and is more consistent with the attribution rule prescribed by the Regulations for life insurance reserves. See supra, at 758. Moreover, the definition of nonlife reserves under § 801(c)(2) and (3) is explicitly made applicable only "(f)or purposes of (the) subsection (801) (a)" reserve-ratio test. The attribution rule at issue in these cases thus does not apply to the § 820 rules for taxing the income of life insurance companies from modified coinsurance contracts (or to the taxation of any other insurance income). In short, the majority's conclusion that § 820 "affords an unmistakable indication" of congressional intent with respect to attribution of reserves under § 801, ante, at 749, is refuted by the language of the Code itself.6
64
For the reasons stated, I respectfully dissent.
1
Section 801(a) provides:
"(a) Life insurance company defined.
"For purposes of this subtitle, the term 'life insurance company' means an insurance company which is engaged in the business of issuing life insurance and annuity contracts (either separately or combined with health and accident insurance), or noncancellable contracts of health and accident insurance, if
"(1) its life insurance reserves (as defined in subsection (b)), plus
"(2) unearned premiums, and unpaid losses (whether or not ascertained), on noncancellable life, health, or accident policies not included in life insurance reserves,
"comprise more than 50 percent of its total reserves (as defined in subsection (c))."
As may be seen, the statement in the text is somewhat oversimplified. Reserves for noncancellable life, health, or accident policies are added to life insurance reserves for purposes of computing the ratio. See generally Alinco Life Ins. Co. v. United States, 373 F.2d 336, 345-355, 178 Ct.Cl. 813, 831-847 (1967). Since none of these cases, as they reach us, involves any issue concerning noncancellable policies, we may ignore this factor.
Statutory citations, unless otherwise indicated, are to the Internal Revenue Code of 1954.
2
The major benefit is that only 50% of underwriting income is taxed in the year of receipt, the balance being taxed only when made available to stockholders. The scheme for taxing life insurance companies is described in United States v. Atlas Life Ins. Co., 381 U.S. 233, 85 S.Ct. 1379, 14 L.Ed.2d 358 (1965), and Jefferson Standard Life Ins. Co. v. United States, 408 F.2d 842, 844-846 (CA4), cert. denied, 396 U.S. 828, 90 S.Ct. 77, 24 L.Ed.2d 78 (1969).
Stock companies that fail to qualify as life insurance companies are taxed under the less favorable provisions of § 831. Most mutual insurance companies other than life are taxed under § 821, a section not implicated here since taxpayers are all stock companies.
3
In two of the cases, the Court of Claims held for the taxpayer. Consumer Life Ins. Co. v. United States, 524 F.2d 1167, 207 Ct.Cl. 638 (1975); Penn Security Life Ins. Co. v. United States, 524 F.2d 1155, 207 Ct.Cl. 594 (1975). In the third case, the Court of Appeals for the Fifth Circuit ruled in favor of the Government. First Railroad & Banking Co. of Georgia v. United States, 514 F.2d 675 (1975). It relied on an earlier holding to the same effect in Economy Finance Corp. v. United States, 501 F.2d 466 (CA7 1974), cert. denied, 420 U.S. 947, 95 S.Ct. 1328, 43 L.Ed.2d 425 rehearing denied, 421 U.S. 922, 95 S.Ct. 1590, 43 L.Ed.2d 790 (1975), motion for leave to file second petition for rehearing pending, No. 74-701.
4
Section 801(c) provides in relevant part:
"(c) Total reserves defined.
"For purposes of subsection (a), the term 'total reserves' means
"(1) life insurance reserves,
"(2) unearned premiums, and unpaid losses (whether or not ascertained), not included in life insurance reserves, and
"(3) all other insurance reserves required by law."
"Life insurance reserves" is defined in § 801(b).
5
See Treas. Reg. § 1.801-3(e) (1960) (defining unearned premiums), explained in Rev. Rul. 69-270, 1969-1 Cum. Bull. 185: Utah Home Fire Ins. Co. v. Commissioner of Internal Revenue, 64 F.2d 763 (CA10), cert. denied, 290 U.S. 679, 54 S.Ct. 103, 78 L.Ed. 586 (1933); nn. 16 and 20, infra. See generally Massachusetts Protective Assn. v. United States, 114 F.2d 304 (CA1 1940); Commissioner of Internal Revenue v. Monarch Life Ins. Co., 114 F.2d 314 (CA1 1940).
6
This figure is derived from a straight-line or pro rata method of computing earned premiums. Some companies use a sum-of-the-digits method known as the Rule of 78, described in detail by the Court of Claims in the Penn Security case, No. 75-1285, Pet. for Cert. 34a-36a (Findings of Fact Nos. 10, 11). The difference in computation methods is not material for present purposes.
7
Each was an indemnity reinsurance treaty, obligating the reinsurer to reimburse the ceding company for its share of losses. Such treaties constitute contracts between the companies only; the policyholders are not involved and usually remain unaware that part or all of the risk has been reinsured.
8
The Government makes this attribution not under the familiar allocation rules of §§ 269 and 482, but rather based primarily on its interpretation of § 801(c). Indeed, the former sections could not apply except in No. 75-1260, the First Railroad case, for only that case involves a reinsurance agreement between corporations controlled by the same interests. The Government invokes neither section here, though it has on occasion attempted to use both in its efforts to impose higher taxes on companies engaged in the credit life insurance business. See Commissioner of Internal Revenue v. First Security Bank of Utah, 405 U.S. 394, 92 S.Ct. 1085, 31 L.Ed.2d 318 (1972) (§ 482); Alinco Life Ins. Co. v. United States, 373 F.2d, at 340-345, 178 Ct.Cl., at 822-830 (§ 269).
9
Consumer Life's premium was later increased to 901/2%.
10
Consumer Life did set up the full tabular reserve for the life insurance policies. See n. 20, infra.
11
Under Treaty II the life business was not reinsured; Consumer Life, by itself, assumed the full liability.
12
In addition to reviewing reports filed on prescribed forms, state regulatory authorities conduct regular triennial examinations of insurance companies, commonly pooling their efforts through the National Association of Insurance Commissioners (NAIC). Such examinations ordinarily include a thorough review of all reinsurance agreements. See generally NAIC, Examiners Handbook A30-A35 (3d ed. rev. 1970, 2d printing 1974). While these treaties were in effect, each company was examined twice, Consumer Life in 1959 and 1963, and American Bankers in 1960 and 1963. The Court of Claims found that the reinsurance treaties were examined in detail, and that the provisions for maintenance of reserves were approved in the course of all four examinations. 524 F.2d, at 1172, 207 Ct.Cl., at 647.
13
Some of the details differ from Treaty II in Consumer Life, but the differences are not important for present purposes.
14
The Government does not seek to base attribution of reserves on this relationship. See n. 8, supra.
15
Treaty I type reinsurance is therefore different from the relation of agent and insurer found in Superior Life Ins. Co. v. United States, 462 F.2d 945 (CA4 1972) (credit A&H premiums were held by the finance company until earned and only then paid to the insurance company; the court held that under state law the finance company was a mere agent and the insurance company would be treated as holding the unearned premium reserve).
16
Surplus drain may be illustrated by the following example: A company issues a one-year A&H policy for a premium of $120, paying its agent a $60 commission at the time of issuance. The state insurance department will require the company to set up a reserve on the liability side of its balance sheet equivalent to the gross unearned premium $120 at the beginning of coverage. But after paying the commission the company shows a cash asset of only $60. The $60 difference results in a $60 decrease in surplus.
As each month elapses, $10 one-twelfth of the annual premium becomes "earned" and is therefore released from the reserve. A company whose business is level, writing new policies only as an equivalent number of old policies expire, will therefore experience no surplus drain, assuming that claims experience is within the expected range; the pro rata release from reserves as premiums become earned will match the burden imposed by new policies. But companies whose business is expanding, and especially new companies, will have a continuing surplus-drain problem. See generally Dickerson 606; Utah Home Fire Ins. Co. v. Commissioner of Internal Revenue, 64 F.2d, at 764; n. 20 infra.
Reinsurance can provide amelioration. Assume the company in the example above reinsures half its business under a treaty with simpler provisions than Treaty I or Treaty II. This treaty calls for the reinsurer to establish a reserve equal to 50% of the gross unearned premium, in return for immediate payment of 50% of the primary insurer's net premium income. The primary company then takes credit against its reserve for the business ceded; its reserve is reduced from $120 to $60. At the same time it remits half its net income, $30, retaining a cash asset of $30. Each policy written on this basis therefore drains surplus only by $30, the difference between the $60 reserve and the $30 asset. Under the treaty the company can issue twice as many policies as before for the same total depletion in surplus.
17
Consumer Life, No. 75-1221, Pet. for Cert. 97a-98a, 100a, 105a (Findings of Fact Nos. 18, 19, 25, 37); First Railroad, No. 75-1260, Pet. for Cert. 14a-15a (District Court finding of fact accepted by the Court of Appeals, 514 F.2d, at 677).
18
The Government also relies on an asserted analogy to Commissioner of Internal Revenue v. Hansen, 360 U.S. 446, 79 S.Ct. 1270, 3 L.Ed.2d 1360 (1959). That case, dealing with a question of ordinary accrual accounting, is inapposite. Life insurance accounting is a world unto itself. See Brown v. Helvering, 291 U.S. 193, 201, 54 S.Ct. 356, 360, 78 L.Ed. 725 (1934); Great Commonwealth Life Ins. Co. v. United States, 491 F.2d 109 (CA5 1974). Mechanical application of ordinary accounting principles will not necessarily yield a sound result.
19
It is not difficult to conceive of changes in the treaties, however, that would make it much harder to determine whether the other party bore a substantial risk. And if any risk that may be called substantial is sufficient to permit the parties to escape the attribution for which the Government argues, then surely a Government victory here would be short-lived. Cf. Commissioner of Internal Revenue v. Brown, 380 U.S. 563, 580, 85 S.Ct. 1162, 1171, 14 L.Ed.2d 75 (1965) (Harlan, J., concurring).
20
It is clear, in any event, that the traditional actuarial and accounting treatment of A&H reserves is not built entirely on a logic of risk. The premium charged the policyholder consists of two parts, an expense portion, or "loading," to cover commissions, administrative expenses, and profit, and a claims portion. Only the latter, the net premium or "morbidity" element, represents the company's estimate of what it must now take in and invest to meet its responsibilities as claims arise; that is, only the latter represents the company's risk. The expense portion is relatively fixed. Nearly all of it is paid out, for commissions and administrative expenses connected with issuing the policy, at the time the premiums are received. Since these expenses already have been paid, the only future liabilities for which a reserve strictly is needed are claims. Nevertheless, state insurance departments uniformly require that A&H reserves be set up equivalent to the gross unearned premium. A&H reserves thus stand on a different footing from life insurance reserves, which are typically computed on the basis of mortality tables and assumed rates of interest. See § 801(b). Life reserves contain no loading element.
Although gross unearned premium reserves may not strictly comport with a logic of risk, from the viewpoint of insurance regulators this approach yields advantages in simplicity of computation. Establishing the larger reserve also tends to assure conservative operation and the availability of means to pay refunds in the event of cancellation. See generally Mayerson, Ensuring the Solvency of Property and Liability Insurance Companies, in Insurance, Government and Social Policy 146, 171-172 (S. Kimball & H. Denenberg eds. 1969); Dickerson 604-606; Utah Home Fire Ins. Co. v. Commissioner of Internal Revenue, 64 F.2d, at 764.
21
Since Congress thus has not adhered completely to the policy underlying its choice to tax life insurance companies differently from other insurance companies, we believe the court in Economy Finance Corp. v. United States, 501 F.2d 466 (CA7 1974), relied too heavily on its reading of that policy in finding that unearned premium reserves should be attributed from the ceding company to the reinsurer in a Treaty I type agreement. See Penn Security, 524 F.2d at 1162, 207 Ct.Cl., at 608.
22
Section 242 of the 1921 Act, 42 Stat. 261, provided:
"That when used in this title the term 'life insurance company' means an insurance company engaged in the business of issuing life insurance and annuity contracts (including contracts of combined life, health, and accident insurance), the reserve funds of which held for the fulfillment of such contracts comprise more than 50 per centum of its total reserve funds."
23
In 1942 Congress did add a definition of "total reserves," specifying the same three elements that appear in the definition today. Revenue Act of 1942, § 163, 56 Stat. 867, amending § 201(b) of the Internal Revenue Code of 1939. The 1942 committee reports take note of the addition, but do not elaborate. There is no glimmer of a "reserves follow the risk" rule. H. R. Rep. No. 2333, 77th Cong., 2d Sess., 109 (1942); S. Rep. No. 1631, 77th Cong., 2d Sess., 145 (1942).
24
See n. 2, supra.
25
During the hearings a number of witnesses and legislators expressed a concern that so-called specialty companies, particularly credit life insurance companies, were reaping excessive benefits from preferential life insurance company taxation. See, e. g. Hearings before the Subcommittee on Internal Revenue Taxation of the House Committee on Ways and Means, 85th Cong., 2d Sess., 78, 242-244, 330, 422-434 (1958); Hearings on H. R. 4245 before the Senate Committee on Finance, 86th Cong., 1st Sess., 84-85 (1959). Some proposed to deny them these benefits by altering the definition in § 801. See House Hearings, supra, at 78, 330; Senate Hearings, supra, at 85. No one addressed the question of reserve allocation under reinsurance contracts like those involved here, but Congress clearly was made aware that § 801 often led to what some considered undesirable results when applied to credit life insurance companies. See also H. R. Rep. No. 1098, 84th Cong., 1st Sess., 3-7 (1955); S. Rep. No. 1571, 84th Cong., 2d Sess., 3-8 (1956).
26
H. R. Rep. No. 34, 86th Cong., 1st Sess., 22-23 (1959); S. Rep. No. 291, 86th Cong., 1st Sess., 41-44 (1959).
27
Section 820 provides in relevant part:
"s 820. Optional treatment of policies reinsured under modified coinsurance contracts.
"(a) In general.
"(1) Treatment as reinsured under conventional coinsurance contract.
Under regulations prescribed by the Secretary or his delegate, an insurance or annuity policy reinsured under a modified coinsurance contract (as defined in subsection (b) ) shall be treated, for purposes of this part (other than for purposes of section 801), as if such policy were reinsured under a conventional coinsurance contract.
"(2) Consent of reinsured and reinsurer.
"Paragraph (1) shall apply to an insurance or annuity policy reinsured under a modified coinsurance contract only if the reinsured and reinsurer consent, in such manner as the Secretary or his delegate shall prescribe by regulations
"(A) to the application of paragraph (1) to all insurance and annuity policies reinsured under such modified coinsurance contract, and
"(B) to the application of the rules provided by subsection (c) and the rules prescribed under such subsection.
"Such consent, once given, may not be rescinded except with the approval of the Secretary or his delegate.
"(b) Definition of modified coinsurance contract.
"For purposes of this section, the term 'modified coinsurance contract' means an indemnity reinsurance contract under the terms of which
"(1) a life insurance company (hereinafter referred to as 'the reinsurer') agrees to indemnify another life insurance company (hereinafter referred to as 'the reinsured') against a risk assumed by the reinsured under the insurance or annuity policy reinsured,
"(2) the reinsured retains ownership of the assets in relation to the reserve on the policy reinsured,
"(3) all or part of the gross investment income derived from such assets is paid by the reinsured to the reinsurer as a part of the consideration for the reinsurance of such policy, and
"(4) the reinsurer is obligated for expenses incurred, and for Federal income taxes imposed, in respect of such gross investment income.
"(c) Special rules.
"Under regulations prescribed by the Secretary or his delegate, in applying subsection (a)(1) with respect to any insurance or annuity policy the following rules shall (to the extent not improper under the terms of the modified coinsurance contract under which such policy is reinsured) be applied in respect of the amount of such policy reinsured:
"(3) Reserves and assets.
"The reserve on the policy reinsured shall be treated as a part of the reserves of the reinsurer and not of the reinsured, and the assets in relation to such reserve shall be treated as owned by the reinsurer and not by the reinsured."
28
Coinsurance carries a substantially different meaning in the life insurance field than it does in the case of liability or property insurance. See Steffen, Life and Health Reinsurance, in Life and Health Insurance Handbook 1035 n. 1 (D. Gregg ed. 1964); S. Huebner, K. Black, & R. Cline, Property and Liability Insurance 95-100 (2d ed. 1976).
29
This was not a problem under prior law, since the underwriting income of life insurance companies was not taxed.
30
This conclusion is not weakened by the provision in § 820(a)(1) that the special treatment under § 820 shall not apply for purposes of § 801. This exception simply means that for purposes of § 801 the reserves are invariably treated as held by the ceding company; the companies are unable to elect to have those reserves follow the risk. Cf. Rev.Rul. 70-508, 1970-2 Cum.Bull. 136, described in the text infra.
The Government argues that § 820 has no bearing on attribution of A&H reserves since it applies only to reinsurance agreements in the life insurance field. We find this unpersuasive. The Government derives its "reserves follow the risk" rule from the definition of "reserve" and the fact that a reserve is a liability, not an asset. See supra, at 739-740. Life reserves are as much liabilities as are A&H reserves. Although there are important differences in the ways the two are computed, see n. 20, supra, none of those differences are germane to the reasoning by which the Government derives its rule. Either the "reserves follow the risk" rule is valid for all insurance risks or it is valid for none.
31
See 105 Cong. Rec. 2569, 2576-2577 (1959) (remarks of Reps. Mills and Simpson, chairman and ranking minority member, respectively, of the Subcommittee on Internal Revenue Taxation).
32
See Consumer Life, No. 75-1221, Pet. for Cert. 108a (Finding of Fact No. 47); First Railroad, No. 75-1260, Pet. for Cert. 16a (finding by the District Court; the Court of Appeals did not take issue with this finding).
33
Consumer Life, 524 F.2d, at 1170-1172, 207 Ct.Cl., at 643-647; First Railroad, No. 75-1260, Pet. for Cert. 16a (finding by the District Court), noted without disapproval by the Court of Appeals, 514 F.2d, at 677 n. 8; Penn Security, 524 F.2d, at 1157, 207 Ct.Cl., at 599. See also Penn Security, No. 75-1285, Pet. for Cert. 48a (Finding of Fact No. 29).
34
The current statute bases the § 801 determination on reserves, not on other criteria Congress could have chosen that might arguably give a better indication of the relative importance of a company's life insurance business. See Economy Finance Corp. v. United States, 501 F.2d at 483 (Stevens, J., dissenting). We, of course, are called upon to apply the statute as it is written. Furthermore, the interpretation for which the Government contends "would have wide ramifications which we are not prepared to visit upon taxpayers, absent congressional guidance in this direction." Commissioner of Internal Revenue v. Brown, 380 U.S., at 575, 85 S.Ct., at 1168. If changes are thought necessary, that is Congress' business.
35
For example, Ariz.Rev.Stat.Ann. § 20-506 (1975) provides in part that "every insurer shall maintain an unearned premium reserve on all policies in force." Under § 20-104, " 'Insurer' includes every person engaged in the business of making contracts of insurance." Section 20-103 of the Arizona statute defines "insurance" as "a contract whereby one undertakes to indemnify another . . . ." After summarizing these provisions the Government concludes: "The significant aspect of these state statutes is that they require the establishment of a reserve by the company that is ultimately liable to meet policy claims whether or not it has actually received the premiums for the coverage." Brief for United States 69-70. We do not think these general provisions can be read to support such a sweeping conclusion.
36
In Consumer Life and First Railroad the Government introduced the testimony of certain insurance department officials from Arizona and Georgia. They indicated that the omission of unearned premium reserves from these two taxpayers' annual reports was permitted "unwittingly" or only because the departments were unfamiliar at the time with these types of reinsurance agreements. But we do not think this after-the-fact testimony from single officials should outweigh the formal, official approval rendered under the names of the commissioners after opportunity for full review. Moreover, this formal approval withstood careful triennial audits. See n. 12, supra.
37
The relevant Treasury Regulations also seem to make state practice determinative:
"(T)he term 'reserves required by law' means reserves which are required either by express statutory provisions or by rules and regulations of the insurance department of a State, Territory, or the District of Columbia when promulgated in the exercise of a power conferred by statute, and which are reported in the annual statement of the company and accepted by state regulatory authorities as held for the fulfillment of the claims of policyholders or beneficiaries." Treas.Reg. § 1.801-5(b) (1960) (emphasis added).
See also § 1.801-5(a) (indicating that the reserve "must have been actually held during the taxable year for which the reserve is claimed").
38
The Government suggests that state regulatory practice cannot be deemed controlling under the doctrine of McCoach v. Insurance Co. of North America, 244 U.S. 585, 37 S.Ct. 709, 61 L.Ed. 1333 (1917) and the many cases in this Court that followed it. See, e. g., United States v. Boston Ins. Co., 269 U.S. 197, 46 S.Ct. 97, 70 L.Ed. 232 (1925); New York Ins. Co. v. Edwards, 271 U.S. 109, 46 S.Ct. 436, 70 L.Ed. 859 (1926); Helvering v. Inter-Mountain Life Ins. Co., 294 U.S. 686, 55 S.Ct. 572, 79 L.Ed. 1227 (1935). Those cases held that certain reserves mandated by state insurance authorities were not reserves "required by law" within the meaning of the early Revenue Acts, because they were not technical insurance reserves. In those cases, however, the question was not whether the taxpayers qualified for preferential tax treatment. Rather, the question was whether the taxpayers would be allowed a deduction for additions to various reserves, and the skeletal provisions of the earlier Acts necessitated a restrictive view. See McCoach, supra, 244 U.S., at 589, 37 S.Ct., at 711. The same restrictive view is not appropriate for purposes of applying § 801. See National Protective Ins. Co. v. Commissioner of Internal Revenue, 128 F.2d 948, 950-952 (CA8), cert. denied, 317 U.S. 655, 63 S.Ct. 51, 87 L.Ed. 527 (1942). Moreover, those early cases generally have little bearing on questions that arise under the more recent enactments. The definition of "life insurance reserves" that now appears in § 801(b), and which originated with the 1942 Revenue Act, substantially replaced the problematic concept of technical reserves developed in McCoach. See United States v. Occidental Life Ins. Co., 385 F.2d 1, 4-7 (CA9 1967).
1
Life insurance company taxable income is calculated by a complicated three-stage process outlined in Jefferson Standard Life Ins. Co. v. United States, 408 F.2d 842, 844-846 (CA4), cert. denied, 396 U.S. 828, 90 S.Ct. 77, 24 L.Ed.2d 78 (1969). The end result of these intricate calculations is a substantial narrowing of the tax base of such companies. See Clark, The Federal Income Taxation of Financial Intermediaries, 84 Yale L.J. 1603, 1637-1664 (1975). In addition to deferring taxation on 50% of underwriting income, ante, at 728 n. 2, life insurance companies are not taxed on an estimated 70% to 75% of their net investment income. Clark, supra, at 1642-1643, and n. 152. See United States v. Atlas Life Ins. Co., 381 U.S. 233, 236-237, 247-249, 85 S.Ct. 1379, 1381-1382, 1387-1388, 14 L.Ed.2d 358 (1965).
2
In order to qualify under § 801 as a "life insurance company," the taxpayer first must qualify as an "insurance company." For this purpose, as well as for qualifying as a "life insurance company," the "primary and predominant business activity" of the company determines its tax status:
"The term 'insurance company' means a company whose primary and predominant business activity during the taxable year is the issuing of insurance or annuity contracts or the reinsuring of risks underwritten by insurance companies. Thus, though its name, charter powers, and subjection to State insurance laws are significant in determining the business which a company is authorized and intends to carry on, it is the character of the business actually done in the taxable year which determines whether a company is taxable as an insurance company under the Internal Revenue Code." Treas.Reg. § 1.801-3(a)(1) (1972). (Emphasis added.)
3
The majority assumes that "the taxpayers did take on all substantial risks" under the arrangements by which the A&H reserves in relation to these risks were held by other companies. Ante, at 740. The taxpayers concede and the courts below found that if these A&H reserves are attributable to the taxpayers, they do not qualify as life insurance companies under the reserve-ratio test. 524 F.2d 1167, 1171, 207 Ct.Cl. 638, 645 (1975); 524 F.2d 1155, 1160, 207 Ct.Cl. 594, 604-605 (1975); 514 F.2d 675 (CA5 1975).
4
The majority evidently hopes that state regulatory authorities will prevent "widespread abuse" of this type, ante, at 749, by requiring a company assuming insurance risks to hold the corresponding reserves. But, as the Court of Claims below in No. 75-1221 observed, the goal of
state insurance regulation is not to protect the federal treasury from tax avoidance by insurance companies doing predominantly nonlife business, but rather to protect policyholders by making sure that funds are set aside out of premium receipts for payment of claims. 524 F.2d, at 1171, 207 Ct.Cl., at 645. The majority suggests no reason why, as long as the insurer has made some arrangement for the establishment of reserves, the state regulatory authorities will care who holds them.
The majority's hope that the States will prevent insurance companies from taking advantage of the loophole it has created is further undermined by its holding that the A&H reserves involved in these cases were not attributable to the taxpayers under § 801(c)(3) as "other insurance reserves required by (state) law." Ante, at 750-752. The majority reasons that the taxpayers were not required by state law to maintain these A&H reserves because "(t)he insurance departments of the affected States consistently accepted annual reports showing reserves held as the taxpayers claim they should be." Ante, at 751. (Footnote omitted.) The majority relies on this failure of state regulatory authorities to require inclusion of the A&H reserves in the taxpayers' annual statements, despite uncontradicted testimony of state insurance officials that the reason for this failure was the state officials' unfamiliarity with these particular arrangements purporting to shift reserves to non-risk-bearing companies. Ante, at 751 n. 36. Thus, if a company's arrangements for shifting reserve allocations are sufficiently novel, complex, or well disguised in its annual statements to escape detection by state insurance officials, state regulation will not help at all to close the door to widespread federal income tax avoidance.
5
In Hansen, accrual-basis automobile dealers had sold customer installment obligations to finance companies, who required the dealers to reimburse them for losses arising from nonpayment by the customers. To cover this risk of loss, the dealers retained a portion of the purchase price of the obligations as a reserve. The funds in these reserve accounts were ultimately paid over to the dealers, less amounts applied to cover the losses from nonpayment. The Court held that these reserve accounts were income that accrued to the dealers when the accounts were established, because at that time the reserve funds "were vested in and belonged to the respective dealers, subject only to their . . . contingent liabilities to the finance companies." 360 U.S., at 463, 79 S.Ct., at 1280. Similarly, the taxpayers in these cases allowed other parties to retain the purchase price of A&H insurance policies and to apply part of those funds to the payment of taxpayers' contingent liabilities under the A&H policies; the balance, as in Hansen, was remitted to the taxpayers. These reserves, like the dealer reserves held by the finance companies in Hansen, should be attributed to the risk bearers for tax purposes.
The majority distinguishes Hansen by fiat, stating only that "(l)ife insurance accounting is a world unto itself." Ante, at 739 n. 18. This is hardly a reason to ignore accepted principles of federal income taxation.
6
The majority attempts to find support for its position in a Revenue Ruling requested by the parties to a modified coinsurance contract under § 820(b). Rev.Rul. 70-508, 1970-2 Cum.Bull. 136. As permitted by § 820(a), the parties chose to attribute to the reinsured company the reserves on the portion of the risks reinsured with the other company. The reinsured company was assumed to be a life insurance company for purposes of § 801; the question was how its reserves should be calculated for purposes of the tax on life insurance companies imposed under § 802. See Rev.Rul. 70-508, supra. Because the definition of life insurance company reserves in § 801(b) is used to define "life insurance company taxable income" under § 802, see §§ 802(b), 804(a) (1), 805(a) and (c), the Commissioner had to decide whether the reserves in question were within the § 801(b) definition for purposes of calculating the tax imposed under § 802. In ruling that the reserves did come within this definition, the Commissioner did not decide how reserves should be attributed for companies seeking to qualify for life insurance company status. That issue was not before him, because the companies had already qualified.
| 1112
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430 U.S. 817
97 S.Ct. 1491
52 L.Ed.2d 72
Vernon Lee BOUNDS, etc., et al., Petitioners,v.Robert (Bobby) SMITH et al.
No. 75-915.
Argued Nov. 1, 1976.
Decided April 27, 1977.
Syllabus
The fundamental constitutional right of access to the courts held to require prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142. Pp. 821-833.
538 F.2d 541, affirmed.
Jacob L. Safron, Raleigh, N.C., for petitioners.
Barry Nakell, Chapel Hill, N.C., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The issue in this case is whether States must protect the right of prisoners to access to the courts by providing them with law libraries or alternative sources of legal knowledge. In Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), we held per curiam that such services are constitutionally mandated. Petitioners, officials of the State of North Carolina, ask us to overrule that recent case, but for reasons explained below, we decline the invitation and reaffirm our previous decision.
2
* Respondents are inmates incarcerated in correctional facilities of the Division of Prisons of the North Carolina Department of Correction. They filed three separate actions under 42 U.S.C. § 1983, all eventually consolidated in the District Court for the Eastern District of North Carolina. Respondents alleged, in pertinent part, that they were denied access to the courts in violation of their Fourteenth Amendment rights by the State's failure to provide legal research facilities.1
3
The District Court granted respondents' motion for summary judgment on this claim,2 finding that the sole prison library in the State was "severely inadequate" and that there was no other legal assistance available to inmates. It held on the basis of Younger v. Gilmore that respondents' rights to access to the courts and equal protection of the laws had been violated because there was "no indication of any assistance at the initial stage of preparation of writs and petitions." The court recognized, however, that determining the "appropriate relief to be ordered . . . presents a difficult problem," in view of North Carolina's decentralized prison system.3 Rather than attempting "to dictate precisely what course the State should follow," the court "charge(d) the Department of Correction with the task of devising a Constitutionally sound program" to assure inmates access to the courts. It left to the State the choice of what alternative would "most easily and economically" fulfill this duty, suggesting that a program to make available lawyers, law students, or public defenders might serve the purpose at least as well as the provision of law libraries. Supp.App. 12-13.
4
The State responded by proposing the establishment of seven libraries in institutions located across the State chosen so as to serve best all prison units. In addition, the State planned to set up smaller libraries in the Central Prison segregation unit and the Women's Prison. Under the plan, inmates desiring to use a library would request appointments. They would be given transportation and housing, if necessary, for a full day's library work. In addition to its collection of lawbooks,4 each library would stock legal forms and writing paper and have typewriters and use of copying machines. The State proposed to train inmates as research assistants and typists to aid fellow prisoners. It was estimated that ultimately some 350 inmates per week could use the libraries although inmates not facing court deadlines might have to wait three or four weeks for their turn at a library. Respondents protested that the plan was totally inadequate and sought establishment of a library at every prison.5
5
The District Court rejected respondents' objections, finding the State's plan "both economically feasible and practicable," and one that, fairly and efficiently run, would "insure each inmate the time to prepare his petitions."6 Id., at 19. Further briefing was ordered on whether the State was required to provide independent legal advisors for inmates in addition to the library facilities.
6
In its final decision, the District Court held that petitioners were not constitutionally required to provide legal assistance as well as libraries. It found that the library plan was sufficient to give inmates reasonable access to the courts and that our decision in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), while not directly in point, supported the State's claim that it need not furnish attorneys to bring habeas corpus and civil rights actions for prisoners.
7
After the District Court approved the library plan, the State submitted an application to the Federal Law Enforcement Assistance Administration (LEAA) for a grant to cover 90% of the cost of setting up the libraries and training a librarian and inmate clerks. The State represented to LEAA that the library project would benefit all inmates in the State by giving them "meaningful and effective access to the court(s). . . . (T)he ultimate result . . . should be a diminution in the number of groundless petitions and complaints filed . . . . The inmate himself will be able to determine to a greater extent whether or not his rights have been violated" and judicial evaluation of the petitions will be facilitated. Brief for Respondents 3a.
8
Both sides appealed from those portions of the District Court orders adverse to them. The Court of Appeals for the Fourth Circuit affirmed in all respects save one. It found that the library plan denied women prisoners the same access rights as men to research facilities. Since there was no justification for this discrimination, the Court of Appeals ordered it eliminated. The State petitioned for review and we granted certiorari. 425 U.S. 910, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976).7 We affirm.
II
9
A. It is now established beyond doubt that prisoners have a constitutional right of access to the courts. This Court recognized that right more than 35 years ago when it struck down a regulation prohibiting state prisoners from filing petitions for habeas corpus unless they were found " 'properly drawn' " by the " 'legal investigator' " for the parole board. Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). We held this violated the principle that "the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus." Id., at 549, 61 S.Ct. at 641. See also Cochran v. Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453 (1942).
10
More recent decisions have struck down restrictions and required remedial measures to insure that inmate access to the courts is adequate, effective, and meaningful. Thus, in order to prevent "effectively foreclosed access," indigent prisoners must be allowed to file appeals and habeas corpus petitions without payment of docket fees. Burns v. Ohio, 360 U.S. 252, 257, 79 S.Ct. 1164, 1168, 3 L.Ed.2d 1029 (1959); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961). Because we recognized that "adequate and effective appellate review" is impossible without a trial transcript or adequate substitute, we held that States must provide trial records to inmates unable to buy them. Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956).8 Similarly, counsel must be appointed to give indigent inmates "a meaningful appeal" from their convictions. Douglas v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 817, 9 L.Ed.2d 811 (1963).
11
Essentially the same standards of access were applied in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), which struck down a regulation prohibiting prisoners from assisting each other with habeas corpus applications and other legal matters. Since inmates had no alternative form of legal assistance available to them, we reasoned that this ban on jailhouse lawyers effectively prevented prisoners who were "unable themselves, with reasonable adequacy, to prepare their petitions," from challenging the legality of their confinements. Id., at 489, 89 S.Ct. at 750. Johnson was unanimously extended to cover assistance in civil rights actions in Wolff v. McDonnell, 418 U.S. 539, 577-580, 94 S.Ct. 2963, 2985-2988, 41 L.Ed.2d 935 (1974). And even as it rejected a claim that indigent defendants have a constitutional right to appointed counsel for discretionary appeals, the Court reaffirmed that States must "assure the indigent defendant an adequate opportunity to present his claims fairly." Ross v. Moffitt, 417 U.S., at 616, 94 S.Ct. at 2447. "(M) eaningful access" to the courts is the touchstone. See id., at 611, 612, 615, 94 S.Ct., at 2444-2446.9
12
Petitioners contend, however, that this constitutional duty merely obliges States to allow inmate "writ writers" to function. They argue that under Johnson v. Avery, supra, as long as inmate communications on legal problems are not restricted, there is no further obligation to expend state funds to implement affirmatively the right of access. This argument misreads the cases.
13
In Johnson and Wolff v. McDonnell, supra, the issue was whether the access rights of ignorant and illiterate inmates were violated without adequate justification. Since these inmates were unable to present their own claims in writing to the courts, we held that their "constitutional right to help," Johnson v. Avery, supra, at 502, 89 S.Ct. at 757 (White, J., dissenting), required at least allowing assistance from their literate fellows. But in so holding, we did not attempt to set forth the full breadth of the right of access. In McDonnell, for example, there was already an adequate law library in the prison.10 The case was thus decided against a backdrop of availability of legal information to those inmates capable of using it. And in Johnson, although the petitioner originally requested lawbooks, see 393 U.S., at 484, 89 S.Ct. at 748, the Court did not reach the question, as it invalidated the regulation because of its effect on illiterate inmates. Neither case considered the question we face today and neither is inconsistent with requiring additional measures to assure meaningful access to inmates able to present their own cases.11
14
Moreover, our decisions have consistently required States to shoulder affirmative obligations to assure all prisoners meaningful access to the courts. It is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents with notarial services to authenticate them, and with stamps to mail them. States must forgo collection of docket fees otherwise payable to the treasury and expend funds for transcripts. State expenditures are necessary to pay lawyers for indigent defendants at trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and in appeals as of right, Douglas v. California, supra.12 This is not to say that economic factors may not be considered, for example, in choosing the methods used to provide meaningful access. But the cost of protecting a constitutional right cannot justify its total denial. Thus, neither the availability of jailhouse lawyers nor the necessity for affirmative state action is dispositive of respondents' claims. The inquiry is rather whether law libraries or other forms of legal assistance are needed to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.
15
B. Although it is essentially true, as petitioners argue,13 that a habeas corpus petition or civil rights complaint need only set forth facts giving rise to the cause of action, but see, Fed.Rules Civ.Proc. 8(a)(1), (3), it hardly follows that a law library or other legal assistance is not essential to frame such documents. It would verge on incompetence for a lawyer to file an initial pleading without researching such issues as jurisdiction, venue, standing, exhaustion of remedies, proper parties plaintiff and defendant, and types of relief available. Most importantly, of course, a lawyer must know what the law is in order to determine whether a colorable claim exists, and if so, what facts are necessary to state a cause of action.
16
If a lawyer must perform such preliminary research, it is no less vital for a pro se prisoner.14 Indeed, despite the "less stringent standards" by which a pro se pleading is judged, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), it is often more important that a prisoner complaint set forth a nonfrivolous claim meeting all procedural prerequisites, since the court may pass on the complaint's sufficiency before allowing filing in forma pauperis and may dismiss the case if it is deemed frivolous. See 28 U.S.C. § 1915.15 Moreover, if the State files a response to a pro se pleading, it will undoubtedly contain seemingly authoritative citations. Without a library, an inmate will be unable to rebut the State's argument. It is not enough to answer that the court will evaluate the facts pleaded in light of the relevant law. Even the most dedicated trial judges are bound to overlook meritorious cases without the benefit of an adversary presentation. Cf. Gardner v. California, 393 U.S. 367, at 369-370, 89 S.Ct. 580, 582, 21 L.Ed.2d 601 (1969). In fact, one of the consolidated cases here was initially dismissed by the same judge who later ruled for respondents, possibly because Younger v. Gilmore was not cited.
17
We reject the State's claim that inmates are "ill-equipped to use" "the tools of the trade of the legal profession," making libraries useless in assuring meaningful access. Brief for Petitioners 17. In the first place, the claim is inconsistent with the State's representations on its LEAA grant application, supra, at 821, and with its argument that access is adequately protected by allowing inmates to help each other with legal problems. More importantly, this Court's experience indicates that pro se petitioners are capable of using lawbooks to file cases raising claims that are serious and legitimate even if ultimately unsuccessful. Finally, we note that if petitioners had any doubts about the efficacy of libraries, the District Court's initial decision left them free to choose another means of assuring access.
18
It is also argued that libraries or other forms of legal assistance are unnecessary to assure meaningful access in light of the Court's decision in Ross v. Moffitt. That case held that the right of prisoners to "an adequate opportunity to present (their) claims fairly," 417 U.S., at 616, 94 S.Ct., at 2446, did not require appointment of counsel to file petitions for discretionary review in state courts or in this Court. Moffitt's rationale, however, supports the result we reach here. The decision in Moffitt noted that a court addressing a discretionary review petition is not primarily concerned with the correctness of the judgment below. Rather, review is generally granted only if a case raises an issue of significant public interest or jurisprudential importance or conflicts with controlling precedent. Id., at 615-617, 94 S.Ct., at 2446-2447. Moffitt held that pro se applicants can present their claims adequately for appellate courts to decide whether these criteria are met because they have already had counsel for their initial appeals as of right. They are thus likely to have appellate briefs previously written on their behalf, trial transcripts, and often intermediate appellate court opinions to use in preparing petitions for further review. Id., at 615, 94 S.Ct., at 2446.
19
By contrast in this case, we are concerned in large part with original actions seeking new trials, release from confinement, or vindication of fundamental civil rights. Rather than presenting claims that have been passed on by two courts, they frequently raise heretofore unlitigated issues. As this Court has "constantly emphasized," habeas corpus and civil rights actions are of "fundamental importance . . . in our constitutional scheme" because they directly protect our most valued rights. Johnson v. Avery, 393 U.S., at 485, 89 S.Ct., at 748; Wolff v. McDonnell, 418 U.S., at 579, 94 S.Ct., at 2986. While applications for discretionary review need only apprise an appellate court of a case's possible relevance to the development of the law, the prisoner petitions here are the first line of defense against constitutional violations. The need for new legal research or advice to make a meaningful initial presentation to a trial court in such a case is far greater than is required to file an adequate petition for discretionary review.16
20
We hold, therefore, that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.17
21
C. Our holding today is, of course, a reaffirmation of the result reached in Younger v. Gilmore. While Gilmore is not a necessary element in the preceding analysis, its precedential weight strongly reinforces our decision. The substantive question presented in Gilmore was: "Does a state have an affirmative federal constitutional duty to furnish prison inmates with extensive law libraries or, alternatively, to provide inmates with professional or quasi-professional legal assistance?" Jurisdictional Statement 5, Brief for Appellants 4, in No. 70-9, O.T.1971. This Court explicitly decided that question when it affirmed the judgment of the District Court in reliance on Johnson v. Avery. Cf. this Court's Rule 15, subd. 1(c). The affirmative answer was given unanimously after full briefing and oral argument. Gilmore has been relied upon without question in our subsequent decisions. Cruz v. Hauck, 404 U.S. 59, 92 S.Ct. 313, 30 L.Ed.2d 217 (1971) (vacating and remanding for reconsideration in light of Gilmore a decision that legal materials need not be furnished to county jail inmates); Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (Gilmore cited approvingly in support of inmates' right of access to the courts); Chaffin v. Stynchcombe, 412 U.S. 17, 34 n. 22, 93 S.Ct. 1977, 1986, 36 L.Ed.2d 714, 728 (1973) (Gilmore cited approvingly as a decision "removing roadblocks and disincentives to appeal"). Most recently, in Wolff v. McDonnell, despite differences over other issues in the case, the Court unanimously reaffirmed that Gilmore requires prison officials "to provide indigent inmates with access to a reasonably adequate law library for preparation of legal actions." 418 U.S., at 578-579, 94 S.Ct. at 2986.
22
Experience under the Gilmore decision suggests no reason to depart from it. Most States and the Federal Government have made impressive efforts to fulfill Gilmore's mandate by establishing law libraries, prison legal-assistance programs, or combinations of both. See Brief for Respondents, Ex. B. Correctional administrators have supported the programs and acknowledged their value.18 Resources and support including substantial funding from LEAA have come from many national organizations.19
23
It should be noted that while adequate law libraries are one constitutionally acceptable method to assure meaningful access to the courts, our decision here, as in Gilmore, does not foreclose alternative means to achieve that goal. Nearly half the States and the District of Columbia provide some degree of professional or quasi-professional legal assistance to prisoners. Brief for Respondents, Ex. B. Such programs take many imaginative forms and may have a number of advantages over libraries alone. Among the alternatives are the training of inmates as paralegal assistants to work under lawyers' supervision, the use of paraprofessionals and law students, either as volunteers or in formal clinical programs, the organization of volunteer attorneys through bar associations or other groups, the hiring of lawyers on a part-time consultant basis, and the use of full-time staff attorneys, working either in new prison legal assistance organizations or as part of public defender or legal services offices.20 Legal services plans not only result in more efficient and skillful handling of prisoner cases, but also avoid the disciplinary problems associated with writ writers, see Johnson v. Avery, 393 U.S., at 488, 89 S.Ct. at 750; Procunier v. Martinez, 416 U.S. 396, 421-422, 94 S.Ct. 1800, 1815, 40 L.Ed.2d 224 (1974). Independent legal advisors can mediate or resolve administratively many prisoner complaints that would otherwise burden the courts, and can convince inmates that other grievances against the prison or the legal system are ill-founded, thereby facilitating rehabilitation by assuring the inmate that he has not been treated unfairly.21 It has been estimated that as few as 500 full-time lawyers would be needed to serve the legal needs of the entire national prison population.22 Nevertheless, a legal access program need not include any particular element we have discussed, and we encourage local experimentation. Any plan, however, must be evaluated as a whole to ascertain its compliance with constitutional standards.23
III
24
Finally, petitioners urge us to reverse the decision below because federal courts should not "sit as co-administrators of state prisons," Brief for Petitioners 13, and because the District Court "exceeded its powers when it puts (sic ) itself in the place of the (prison) administrators," id., at 14. While we have recognized that judicial restraint is often appropriate in prisoners' rights cases, we have also repeatedly held that this policy "cannot encompass any failure to take cognizance of valid constitutional claims." Procunier v. Martinez, supra, at 405, 94 S.Ct., at 1807.
25
Petitioners' hyperbolic claim is particularly inappropriate in this case, for the courts below scrupulously respected the limits on their role. The District Court initially held only that petitioners had violated the "fundamental constitutional guarantee," ibid., of access to the courts. It did not thereupon thrust itself into prison administration. Rather, it ordered petitioners themselves to devise a remedy for the violation, strongly suggesting that it would prefer a plan providing trained legal advisors. Petitioners chose to establish law libraries, however, and their plan was approved with only minimal changes over the strong objections of respondents. Prison administrators thus exercised wide discretion within the bounds of constitutional requirements in this case.
The judgment is
26
Affirmed.
27
Mr. Justice POWELL, concurring.
28
The decision today recognizes that a prison inmate has a constitutional right of access to the courts to assert such procedural and substantive rights as may be available to him under state and federal law. It does not purport to pass on the kinds of claims that the Constitution requires state or federal courts to hear. In Wolff v. McDonnell, 418 U.S. 539, 577-580, 94 S.Ct. 2963, 2985, 41 L.Ed.2d 935 (1974), where we extended the right of access recognized in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), to civil rights actions arising under the Civil Rights Act of 1871, we did not suggest that the Constitution required such actions to be heard in federal court. And in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), where the Court required the States to provide trial records for indigents on appeal, the plurality and concurring opinions explicitly recognized that the Constitution does not require any appellate review of state convictions. Similarly the holding here implies nothing as to the constitutionally required scope of review of prisoners' claims in state or federal court.
29
With this understanding, I join the opinion of the Court.
30
Mr. Chief Justice BURGER, dissenting.
31
I am in general agreement with Mr. Justice STEWART and Mr. Justice REHNQUIST, and join in their opinions. I write only to emphasize the theoretical and practical difficulties raised by the Court's holding. The Court leaves us unenlightened as to the source of the "right of access to the courts" which it perceives or of the requirement that States "foot the bill" for assuring such access for prisoners who want to act as legal researchers and brief writers. The holding, in my view, has far-reaching implications which I doubt have been fully analyzed or their consequences adequately assessed.
32
It should be noted, first, that the access to the courts which these respondents are seeking is not for the purpose of direct appellate review of their criminal convictions. Abundant access for such purposes has been guaranteed by our prior decisions, e. g., Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and by the States independently. Rather, the underlying substantive right here is that of prisoners to mount collateral attacks on their state convictions. The Court is ordering the State to expend resources in support of the federally created right of collateral review.
33
This would be understandable if the federal right in question were constitutional in nature. For example, the State may be required by the Eighth Amendment to provide its inmates with food, shelter, and medical care, see Estelle v. Gamble, 429 U.S. 97, 103-104, 97 S.Ct. 285, 290-291, 50 L.Ed.2d 51 (1976); similarly, an indigent defendant's right under the Sixth Amendment places upon the State the affirmative duty to provide him with counsel for trials which may result in deprivation of his liberty, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); finally, constitutional principles of due process and equal protection form the basis for the requirement that States expend resources in support of a convicted defendant's right to appeal. See Douglas v. California, supra; Griffin v. Illinois, supra.
34
However, where the federal right in question is of a statutory rather than a constitutional nature, the duty of the State is merely negative; it may not act in such a manner as to interfere with the individual exercise of such federal rights. E. g., Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941) (State may not interfere with prisoner's access to the federal court by screening petitions directed to the court); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (State may not prohibit prisoners from providing to each other assistance in preparing petitions directed to the federal courts). Prohibiting the State from interfering with federal statutory rights is, however, materially different from requiring it to provide affirmative assistance for their exercise.
35
It is a novel and doubtful proposition, in my view, that the Federal Government can, by statute, give individuals certain rights and then require the State, as a constitutional matter, to fund the means for exercise of those rights. Cf. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976).
36
As to the substantive right of state prisoners to collaterally attack in federal court their convictions entered by a state court of competent jurisdiction, it is now clear that there is no broad federal constitutional right to such collateral attack, see Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); whatever right exists is solely a creation of federal statute, see Swain v. Pressley, 430 U.S. 372, 384, 97 S.Ct. 1224, 1231, 51 L.Ed.2d 411 (1977) (opinion of BURGER, C. J.); Schneckloth v. Bustamonte, 412 U.S. 218, 250, 252-256, 93 S.Ct. 2041, 2059, 2060-2062, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). But absent a federal constitutional right to attack convictions collaterally and I discern no such right I can find no basis on which a federal court may require States to fund costly law libraries for prison inmates.* Proper federal-state relations preclude such intervention in the "complex and intractable" problems of prison administration. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974).
37
I can draw only one of two conclusions from the Court's holding: it may be read as implying that the right of prisoners to collaterally attack their convictions is constitutional, rather than statutory, in nature; alternatively, it may be read as holding that States can be compelled by federal courts to subsidize the exercise of federally created statutory rights. Neither of these novel propositions is sustainable and for the reasons stated I cannot adhere to either view and therefore dissent.
38
Mr. Justice STEWART, with whom the CHIEF JUSTICE joins, dissenting.
39
In view of the importance of the writ of habeas corpus in our constitutional scheme, " 'it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed.' " Wolff v. McDonnell, 418 U.S. 539, 578, 94 S.Ct. 2963, 2985, 41 L.Ed.2d 935, quoting Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748, 21 L.Ed.2d 718. From this basic principle the Court over five years ago made a quantum jump to the conclusion that a State has a constitutional obligation to provide law libraries for prisoners in its custody. Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142.
40
Today the Court seeks to bridge the gap in analysis that made Gilmore's authority questionable. Despite the Court's valiant efforts, I find its reasoning unpersuasive.
41
If, as the Court says, there is a constitutional duty upon a State to provide its prisoners with "meaningful access" to the federal courts, that duty is not effectuated by adhering to the unexplained judgment in the Gilmore case. More than 20 years of experience with pro se habeas corpus petitions as a Member of this Court and as a Circuit Judge have convinced me that "meaningful access" to the federal courts can seldom be realistically advanced by the device of making law libraries available to prison inmates untutored in their use. In the vast majority of cases, access to a law library will, I am convinced, simply result in the filing of pleadings heavily larded with irrelevant legalisms possessing the veneer but lacking the substance of professional competence.
42
If, on the other hand, Mr. Justice REHNQUIST is correct in his belief that a convict in a state prison pursuant to a final judgment of a court of competent jurisdiction has no constitutional right of "meaningful access" to the federal courts in order to attack his sentence, then a State can be under no constitutional duty to make that access "meaningful." If the extent of the constitutional duty of a State is simply not to deny or obstruct a prisoner's access to the courts, Johnson v. Avery, supra, then it cannot have, even arguably, any affirmative constitutional obligation to provide law libraries for its prison inmates.
43
I respectfully dissent.
44
Mr. Justice REHNQUIST, with whom the CHIEF JUSTICE joins, dissenting.
45
The Court's opinion in this case serves the unusual purpose of supplying as good a line of reasoning as is available to support a two-paragraph per curiam opinion almost six years ago in Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), which made no pretense of containing any reasoning at all. The Court's reasoning today appears to be that we have long held that prisoners have a "right of access" to the courts in order to file petitions for habeas corpus, and that subsequent decisions have expanded this concept into what the Court today describes as a "meaningful right of access." So, we are told, the right of a convicted prisoner to "meaningful access" extends to requiring the State to furnish such prisoners law libraries to aid them in piecing together complaints to be filed in the courts. This analysis places questions of prisoner access on a "slippery slope," and I would reject it because I believe that the early cases upon which the Court relies have a totally different rationale from that which underlies the present holding.
46
There is nothing in the United States Constitution which requires that a convict serving a term of imprisonment in a state penal institution pursuant to a final judgment of a court of competent jurisdiction have a "right of access" to the federal courts in order to attack his sentence. In the first case upon which the Court's opinion relies, Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941), the Court held invalid a regulation of the Michigan State prison which provided that " '(a)ll legal documents, briefs, petitions, motions, habeas corpus proceedings and appeals' " which prisoners wish to file in court had to be first submitted to the legal investigator of the state parole board. If the documents were, in the opinion of this official, " 'properly drawn,' " they would be directed to the court designated. Hull was advised that his petition addressed to this Court had been "intercepted" and referred to the legal investigator for the reason that it was "deemed to be inadequate." This Court held that such a regulation was invalid, and said very clearly why:
47
"Whether a petition for writ of habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are questions for that court alone to determine." Id., at 549, 61 S.Ct. at 642.
48
A number of succeeding cases have expanded on this bare-bones holding that an incarcerated prisoner has a right of physical access to a federal court in order to petition that court for relief which Congress has authorized it to grant. These cases, most of which are mentioned in the Court's opinion, begin with Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and culminate in United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976), decided last Term. Some, such as Griffin, supra, and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), appear to depend upon the principle that indigent convicts must be given a meaningful opportunity to pursue a state-created right to appeal, even though the pursuit of such a remedy requires that the State must provide a transcript or furnish counsel. Others, such as Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), depend on the principle that the State, having already incarcerated the convict and thereby virtually eliminated his contact with people outside the prison walls, may not further limit contacts which would otherwise be permitted simply because such contacts would aid the incarcerated prisoner in preparation of a petition seeking judicial relief from the conditions or terms of his confinement. Clearly neither of these principles supports the Court's present holding: The prisoners here in question have all pursued all avenues of direct appeal available to them from their judgments of conviction, and North Carolina imposes no invidious regulations which allow visits from all persons except those knowledgeable in the law. All North Carolina has done in this case is to decline to expend public funds to make available law libraries to those who are incarcerated within its penitentiaries.
49
If respondents' constitutional arguments were grounded on the Equal Protection Clause, and were in effect that rich prisoners could employ attorneys who could in turn consult law libraries and prepare petitions for habeas corpus, whereas indigent prisoners could not, they would have superficial appeal. See Griffin, supra; Douglas, supra. I believe that they would nonetheless fail under Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). There we held that although our earlier cases had required the State to provide meaningful access to state-created judicial remedies for indigents, the only right on direct appeal was that "indigents have an adequate opportunity to present their claims fairly within the adversary system." Id., at 612, 94 S.Ct. at 2444.
50
In any event, the Court's opinion today does not appear to proceed upon the guarantee of equal protection of the laws, a guarantee which at least has the merit of being found in the Fourteenth Amendment to the Constitution. It proceeds instead to enunciate a "fundamental constitutional right of access to the courts," ante, at 828, which is found nowhere in the Constitution. But if a prisoner incarcerated pursuant to a final judgment of conviction is not prevented from physical access to the federal courts in order that he may file therein petitions for relief which Congress has authorized those courts to grant, he has been accorded the only constitutional right of access to the courts that our cases have articulated in a reasoned way. Ex parte Hull, supra. Respondents here make no additional claims that prison regulations invidiously deny them access to those with knowledge of the law so that such regulations would be inconsistent with Johnson, supra, Procunier, supra, and Wolf, supra. Since none of these reasons is present here, the "fundamental constitutional right of access to the courts" which the Court announces today is created virtually out of whole cloth with little or no reference to the Constitution from which it is supposed to be derived.
51
Our decisions have recognized on more than one occasion that lawful imprisonment properly results in a "retraction (of rights) justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). A convicted prisoner who has exhausted his avenues of direct appeal is no longer to be accorded every presumption of innocence, and his former constitutional liberties may be substantially restricted by the exigencies of the incarceration in which he has been placed. See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Where we come to the point where the prisoner is seeking to collaterally attack a final judgment of conviction, the right of physical access to the federal courts is essential because of the congressional provisions for federal habeas review of state convictions. Ex parte Hull, supra. And the furnishing of a transcript to an indigent who makes a showing of probable cause, in order that he may have any realistic chance of asserting his right to such review, was upheld in United States v. MacCollom, supra. We held in Ross v. Moffitt, supra, that the Douglas holding of a right to counsel on a first direct appeal as of right would not be extended to a discretionary second appeal from an intermediate state appellate court to the state court of last resort, or from the state court of last resort to this Court. It would seem, a fortiori, to follow from that case that an incarcerated prisoner who has pursued all his avenues of direct review would have no constitutional right whatever to state appointed counsel to represent him in a collateral attack on his conviction, and none of our cases has ever suggested that a prisoner would have such a right. See Johnson v. Avery, 393 U.S., at 488, 89 S.Ct., at 750. Yet this is the logical destination of the Court's reasoning today. If "meaningful access" to the courts is to include law libraries, there is no convincing reason why it should not also include lawyers appointed at the expense of the State. Just as a library may assist some inmates in filing papers which contain more than the bare factual allegations of injustice, appointment of counsel would assure that the legal arguments advanced are made with some degree of sophistication.
52
I do not believe anything in the Constitution requires this result, although state and federal penal institutions might as a matter of policy think it wise to implement such a program. I conclude by indicating the same respect for Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), as has the Court, in relegating it to a final section set apart from the body of the Court's reasoning. Younger supports the result reached by the Court of Appeals in this case, but it is a two-paragraph opinion which is most notable for the unbridged distance between its premise and its conclusion. The Court's opinion today at least makes a reasoned defense of the result which it reaches, but I am not persuaded by those reasons. Because of that fact I would not have the slightest reluctance to overrule Younger and reverse the judgment of the Court of Appeals in this case.
1
The complaints also alleged a number of other constitutional violations not relevant to the issue now before us.
2
The District Court had originally granted summary judgment for the state officials in one of the three consolidated actions. On appeal, the Court of Appeals for the Fourth Circuit appointed counsel and remanded that case with the suggestion that it be consolidated with the other two cases, then still pending in the District Court.
3
North Carolina's 13,000 inmates are housed in 77 prison units located in 67 counties. Sixty-five of these units hold fewer than 200 inmates. Brief for Petitioners 7 n. 3.
4
The State proposed inclusion of the following law books:
North Carolina General Statutes
North Carolina Reports (1960-present)
North Carolina Court of Appeals Reports
Strong's North Carolina Index
North Carolina Rules of Court
United States Code Annotated:
Title 18
Title 28 §§ 2241-2254
Title 28 Rules of Appellate Procedure
Title 28 Rules of Civil Procedure
Title 42 §§ 1891-2010
Supreme Court Reporter (1960-present)
Federal 2d Reporter (1960-present)
Federal Supplement (1960-present)
Black's Law Dictionary
Sokol: Federal Habeas Corpus
LaFave and Scott: Criminal Law Hornbook (2 copies)
Cohen: Legal Research
Criminal Law Reporter
Palmer: Constitutional Rights of Prisoners
This proposal adheres to a list approved as the minimum collection for prison law libraries by the American Correctional Association (ACA), American Bar Association (ABA), and the American Association of Law Libraries, except for the questionable omission of several treatises, Shepard's Citations, and local rules of court. See ACA, Guidelines for Legal Reference Service in Correctional Institutions: A Tool for Correctional Administrators 5-9 (2d ed. 1975) (hereafter ACA Guidelines); ABA Commission on Correctional Facilities and Services, Bar Association Support to Improve Correctional Services (BASICS), Offender Legal Services 29-30, 70-78 (rev. ed. 1976).
5
Respondents also contended that the libraries should contain additional legal materials, and they urged creation of a large central circulating library.
6
The District Court did order two changes in the plan: that extra copies of the U.S.C.A. Habeas Corpus and Civil Rights Act volumes be provided, and that no reporter advance sheets be discarded, so that the libraries would slowly build up duplicate sets. But the court found that most of the prison units were too small to require their own libraries, and that the cost of the additional books proposed by respondents would surpass their usefulness.
7
Respondents filed no cross-appeal and do not now question the library plan, nor do petitioners challenge the sex discrimination ruling.
8
See also Eskridge v. Washington Prison Bd., 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958) (provision of trial transcript may not be conditioned on approval of judge); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963) (same); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963) (public defender's approval may not be required to obtain coram nobis transcript); Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966) (unconstitutional to require reimbursement for cost of trial transcript only from unsuccessful imprisoned defendants); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966) (State must provide transcript of post-conviction proceeding); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967) (State must provide preliminary hearing transcript); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969) (State must provide habeas corpus transcript); Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969) (State must provide transcript of petty-offense trial); Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971) (State must provide transcript of nonfelony trial).
The only cases that have rejected indigent defendants' claims to transcripts have done so either because an adequate alternative was available but not used, Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), or because the request was plainly frivolous and a prior opportunity to obtain a transcript was waived, United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976).
9
The same standards were applied in United States v. MacCollom, supra.
10
The plaintiffs stipulated in the District Court to the general adequacy of the library, see McDonnell v. Wolff, D.C., 342 F.Supp. 616, 618, 629-630 (Neb.1972), although they contested certain limitations on its use. Those claims were resolved by the lower courts. See id., at 619-622; 483 F.2d 1059, 1066 (CA8 1973); 418 U.S., at 543 n. 2, 94 S.Ct. at 2968.
11
Indeed, our decision is supported by the holding in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), in a related right-of-access context. There the Court invalidated a California regulation barring law students and paraprofessionals employed by lawyers representing prisoners from seeing inmate clients. Id., at 419-422, 94 S.Ct. at 1814-1815. We did so even though California has prison law libraries and permits inmate legal assistance, Gilmore v. Lynch, 319 F.Supp. 105, 107 n. 1 (N.D.Cal.1970), aff'd sub nom. Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971). Even more significantly, the prisoners in question were actually represented by lawyers. Thus, despite the challenged regulation, the inmates were receiving more legal assistance than prisoners aided only by writ writers. Nevertheless, we found that the regulation "impermissibly burdened the right of access." 416 U.S., at 421, 94 S.Ct. at 1815.
12
Cf. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), holding that States must treat prisoners' serious medical needs, a constitutional duty obviously requiring outlays for personnel and facilities.
13
Brief for Petitioners 16-17; Tr. of Oral Arg. 3-9, 11-12.
14
A source of current legal information would be particularly important so that prisoners could learn whether they have claims at all, as where new court decisions might apply retroactively to invalidate convictions.
15
The propriety of these practices is not before us. Courts may also impose additional burdens before appointing counsel for indigents in civil suits. See Johnson v. Avery, 393 U.S. 483, 487-488, 89 S.Ct. 747, 749-750, 21 L.Ed.2d 718 (1969).
16
Nor is United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976), inconsistent with our decision. That case held that in a post-conviction proceeding under 28 U.S.C. § 2255, an applicant was not unconstitutionally deprived of access to the courts by denial of a transcript of his original trial pursuant to 28 U.S.C. § 753(f), where he had failed to take a direct appeal and thereby secure the transcript, where his newly asserted claim of error was frivolous, and where he demonstrated no need for the transcript. Without a library or legal assistance, however, inmates will not have "a current opportunity to present (their) claims fairly," 426 U.S., at 329, 96 S.Ct., at 2039. (Blackmun, J., concurring in judgment), and valid claims will undoubtedly be lost.
17
Since our main concern here is "protecting the ability of an inmate to prepare a petition or complaint," Wolff v. McDonnell, 418 U.S., at 576, 94 S.Ct., at 2984, it is irrelevant that North Carolina authorizes the expenditure of funds for appointment of counsel in some state post-conviction proceedings for prisoners whose claims survive initial review by the courts. See N.C.Gen.Stat. § 7A-451 (Supp.1975); Brief for Petitioners 3 n. 1, 12 n. 8, 14 n. 9, and accompanying text; but cf. Ross v. Moffitt, 417 U.S. 600, 614, 94 S.Ct. 2437, 2445, 41 L.Ed.2d 341 (1974). Moreover, this statute does not cover appointment of counsel in federal habeas corpus or state or federal civil rights actions, all of which are encompassed by the right of access.
Similarly, the State's creation of an advisory Inmate Grievance Commission, see N.C.Gen.Stat. § 148-101 et seq. (Supp.1975); Brief for Petitioners 14, while certainly a noteworthy innovation, does not answer the constitutional requirement for legal assistance to prisoners.
18
Nearly 95% of the state corrections commissioners, prison wardens, and treatment directors responding to a national survey supported creation and expansion of prison legal services. Cardarelli & Finkelstein, Correctional Administrators Assess the Adequacy and Impact of Prison Legal Services Programs in the United States, 65 J.Crim.L., C. & P.S. 91, 99 (1974). Almost 85% believed that the programs would not adversely affect discipline or security or increase hostility toward the institution. Rather, over 80% felt legal services provide a safety valve for inmate grievances, reduce inmate power structures and tensions from unresolved legal problems, and contribute to rehabilitation by providing a positive experience with the legal system. Id., at 95-98. See also ACA Guidelines, supra, n. 4; National Sheriffs' Assn., Inmates' Legal Rights, Standard 14, pp. 33-34 (1974); Bluth, Legal Services for Inmates: Coopting the Jailhouse Lawyer, 1 Capital U.L.Rev. 59, 61, 67 (1972); Sigler, A New Partnership in Corrections, 52 Neb.L.Rev. 35, 38 (1972).
19
See, e. g., U.S.Dept. of Justice, LEAA, A Compendium of Selected Criminal Justice Projects, III-201, IV-361-366 (1975); U.S.Dept. of Justice, LEAA, Grant 75 DF-99-0013, Consortium of States to Furnish Legal Counsel to Prisoners, Final Report, and Program Narrative (1975). The ABA BASICS program, see n. 4, supra, makes grants to state and local bar associations for prison legal services and libraries and publishes a complete technical assistance manual, Offender Legal Services (rev. ed. 1976). See also ABA Resource Center on Correctional Law and Legal Services, Providing Legal Services to Prisoners, 8 Ga.L.Rev. 363 (1974). The American Correctional Association publishes Guidelines for Legal Reference Service in Correctional Institutions (2d ed. 1975). The American Association of Law Libraries publishes O. Werner, Manual for Prison Law Libraries (1976), and its members offer assistance to prison law library personnel.
See also ABA Joint Committee on the Legal Status of Prisoners, Standards Relating to the Legal Status of Prisoners, Standards 2.1, 2.2, 2.3 and Commentary, 14 Am.Crim.L.Rev. 377, 420-443 (tent. draft 1977); National Conference of Commissioners on Uniform State Laws, Uniform Corrections Code, § 2-601 (tent.draft 1976); National Advisory Commission on Criminal Justice Standards and Goals, Corrections 26-30, Standards 2.2, 2.3 (1973).
20
For example, full-time staff attorneys assisted by law students and a national back-up center were used by the Consortium of States to Furnish Legal Counsel to Prisoners, see n. 19, supra. State and local bar associations have established a number of legal services and library programs with support from the ABA BASICS program, see nn. 4 and 19, supra. Prisoners' Legal Services of New York plans to use 45 lawyers and legal assistants in seven offices to give comprehensive legal services to all state inmates. Offender Legal Services, supra, n. 19, at iv. Other programs are described in Providing Legal Services to Prisoners, supra, n. 19, at 399-416.
21
See Cardarelli & Finkelstein, supra, n. 18, at 96-99; LEAA Consortium Reports, supra, n. 19; Champagne & Haas, The Impact of Johnson v. Avery on Prison Administration, 43 Tenn.L.Rev. 275, 295-299 (1976). Cf. 42 U.S.C. § 2996(4) (1970 ed., Supp. V), in which Congress, establishing the Legal Services Corp., declared that "for many of our citizens, the availability of legal services has reaffirmed faith in our government of laws."
22
ABA Joint Committee, supra, n. 19, at 428-429.
23
See, e. g., Stevenson v. Reed, 530 F.2d 1207 (CA5 1976), aff'g 391 F.Supp. 1375 (ND Miss.1975); Bryan v. Werner, 516 F.2d 233 (CA3 1975); Gaglie v. Ulibarri, 507 F.2d 721 (CA9 1974); Corpus v. Estelle, 409 F.Supp. 1090 (SD Tex.1975).
*
The record reflects that prison officials in no way interfered with inmates' use of their own resources in filing collateral attacks. Prison regulations permit access to inmate "writ writers" and each prisoner is entitled to store reasonable numbers of lawbooks in his cell.
| 34
|
431 U.S. 1
97 S.Ct. 1505
52 L.Ed.2d 92
UNITED STATES TRUST COMPANY OF NEW YORK, etc., Appellant,v.State of NEW JERSEY et al.
No. 75-1687.
Argued Nov. 10, 1976.
Decided April 27, 1977.
Rehearing Denied June 13, 1977. See 431 U.S. 975, 97 S.Ct. 2942.
Syllabus
A 1962 statutory covenant between New Jersey and New York limited the ability of the Port Authority of New York and New Jersey to subsidize rail passenger transportation from revenues and reserves pledged as security for consolidated bonds issued by the Port Authority. A 1974 New Jersey statute, together with a concurrent and parallel New York statute, retroactively repealed the 1962 covenant. Appellant, both as a trustee for, and as a holder of, Port Authority bonds, brought suit in the New Jersey Superior Court for declaratory relief, claiming that the 1974 New Jersey statute impaired the obligation of the States' contract with the bondholders in violation of the Contract Clause of the United States Constitution. The Superior Court dismissed the complaint after trial, holding that the statutory repeal was a reasonable exercise of New Jersey's police power and was not prohibited by the Contract Clause. The New Jersey Supreme Court affirmed. Held: The Contract Clause prohibits the retroactive repeal of the 1962 covenant. Pp. 14-32.
(a) The outright repeal of the 1962 covenant totally eliminated an important security provision for the bondholders and thus impaired the obligation of the States' contract. Pp. 17-21.
(b) The security provision of the 1962 covenant was purely a financial obligation and thus not necessarily a compromise of the States' reserved powers that cannot be contracted away. Pp. 21-25.
(c) The repeal of the 1962 covenant cannot be sustained on the basis of Faitoute Iron & Steel Co. v. City of Asbury Park, 316 U.S. 502, 62 S.Ct. 1129, 86 L.Ed. 1629, and W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed. 1298, simply because the bondholders' rights were not totally destroyed. Pp. 26-28.
(d) An impairment of contract such as is involved in this case can only be upheld if it is both reasonable and necessary to serve an important public purpose, but here the impairment was neither necessary to achieve the States' plan to encourage private automobile users to shift to public transportation nor reasonable in light of changed circumstances. Total repeal of the 1962 covenant was not essential, since the States' plan could have been implemented with a less drastic modification of the covenant, and since, without modifying the covenant at all, the States could have adopted alternative means of achieving their twin goals of discouraging automobile use and improving mass transit. Nor can the repeal be claimed to be reasonable on the basis of the need for mass transportation, energy conservation, and environmental protection since the 1962 covenant was adopted with knowledge of such concerns. Pp. 28-32.
69 N.J. 253, 353 A.2d 514, reversed.
Devereux Milburn, New York City, for the appellant.
Michael I. Sovern, New York City, for the appellees.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents a challenge to a New Jersey statute, 1974 N.J.Laws, c. 25, as violative of the Contract Clause1 of the United States Constitution. That statute, together with a concurrent and parallel New York statute, 1974 N.J.Laws, c. 993, repealed a statutory covenant made by the two States in 1962 that had limited the ability of The Port Authority of New York and New Jersey2 to subsidize rail passenger transportation from revenues and reserves.
2
The suit, one for declaratory relief, was instituted by appellant United States Trust Company of New York in the Superior Court of New Jersey, Law Division, Bergen County. Named as defendants were the State of New Jersey, its Governor, and its Attorney General. Plaintiff-appellant sued as trustee for two series of Port Authority Consolidated Bonds, as a holder of Port Authority Consolidated Bonds and on behalf of all holders of such bonds.3
3
After a trial, the Superior Court ruled that the statutory repeal was a reasonable exercise of New Jersey's police power and declared that it was not prohibited by the Contract Clause or by its counterpart in the New Jersey Constitution, Art. IV, § 7, P 3. Accordingly, appellant's complaint was dismissed. 134 N.J.Super. 124, 338 A.2d 833 (1975). The Supreme Court of New Jersey, on direct appeal and by per curiam opinion, affirmed "substantially for the reasons set forth in the (trial court's) opinion." 69 N.J. 253, 256, 353 A.2d 514, 515 (1976). We noted probable jurisdiction. 427 U.S. 903, 96 S.Ct. 3188, 49 L.Ed.2d 1197 (1976).4
4
* BACKGROUND
5
A. Establishment of the Port Authority. The Port Authority was established in 1921 by a bistate compact to effectuate "a better co-ordination of the terminal, transportation and other facilities of commerce in, about and through the port of New York." 1921 N.J.Laws, c. 151, p. 413; 1921 N.Y.Laws, c. 154, p. 493. See N.J.Stat.Ann. § 32:1-1 et seq. (1940); N.Y.Unconsol.Laws § 6401 et seq. (McKinney 1961). The compact, as the Constitution requires, Art. I, § 10, cl. 3, received congressional consent. 42 Stat. 174.
6
The compact granted the Port Authority enumerated powers and, by its Art. III, "such other and additional powers as shall be conferred upon it by the Legislature of either State concurred in by the Legislature of the other, or by Act or Acts of Congress." The powers are enumerated in Art. VI. Among them is "full power and authority to purchase, construct, lease and/or operate any terminal or transportation facility within said district." "Transportation facility" is defined, in Art. XXII, to include "railroads, steam or electric, . . . for use for the transportation or carriage of persons or property."
7
The Port Authority was conceived as a financially independent entity, with funds primarily derived from private investors. The preamble to the compact speaks of the "encouragement of the investment of capital," and the Port Authority was given power to mortgage its facilities and to pledge its revenues to secure the payment of bonds issued to private investors.5
8
See generally E. Bard, The Port of New York Authority (1942).
9
B. Initial Policy Regarding Mass Transit. Soon after the Port Authority's inception, the two States, again with the consent of Congress, 42 Stat. 822, agreed upon a comprehensive plan for the entity's development. 1922 N.J.Laws, c. 9; 1922 N.Y.Laws, c. 43. This plan was concerned primarily, if not solely, with transportation of freight by carriers and not with the movement of passengers in the Port Authority district. The plan, however, was not implemented.6 The New Jersey Legislature at that time declared that the plan "does not include the problem of passenger traffic," even though that problem "should be considered in co-operation with the port development commission." 1922 Laws, c. 104. The Port Authority itself recognized the existence of the passenger service problem. 1924 Annual Report 23; 1928 Annual Report 64-66; App. 574a-575a.
10
In 1927 the New Jersey Legislature, in an Act approved by the Governor, directed the Port Authority to make plans "supplementary to or amendatory of the comprehensive plan . . . as will provide adequate interstate and suburban transportation facilities for passengers." 1927 Laws, c. 277. The New York Legislature followed suit in 1928, but its bill encountered executive veto.7 The trial court observed that this veto "to all intents and purposes ended any legislative effort to involve the Port Authority in an active role in commuter transit for the next 30 years." 134 N.J.Super., at 149, 338 A.2d, at 846.
11
C. Port Authority Fiscal Policy. Four bridges for motor vehicles were constructed by the Port Authority. A separate series of revenue bonds was issued for each bridge. Revenue initially was below expectations, but the bridges ultimately accounted for much of the Port Authority's financial strength. The legislatures transferred the operation and revenues of the successful Holland Tunnel to the Port Authority, and this more than made up for the early bridge deficits.
12
The States in 1931 also enacted statutes creating the general reserve fund of the Port Authority. 1931 N.J.Laws, c. 5; 1931 N.Y.Laws, c. 48. Surplus revenues from all Port Authority facilities were to be pooled in the fund to create an irrevocably pledged reserve equal to one-tenth of the par value of the Port Authority's outstanding bonds. This level was attained 15 years later, in 1946.
13
In 1952, the Port Authority abandoned the practice of earmarking specific facility revenues as security for bonds of that facility. The Port Authority's Consolidated Bond Resolution established the present method of financing its activities; under this method its bonds are secured by a pledge of the general reserve fund.8
14
D. Renewed Interest in Mass Transit. Meanwhile, the two States struggled with the passenger transportation problem. Many studies were made. The situation was recognized as critical, great costs were envisioned, and substantial deficits were predicted for any mass transit operation. The Port Authority itself financed a study conducted by the Metropolitan Rapid Transit Commission which the States had established in 1954.
15
In 1958, Assembly Bill No. 16 was introduced in the New Jersey Legislature. This would have had the Port Authority take over, improve, and operate interstate rail mass transit between New Jersey and New York. The bill was opposed vigorously by the Port Authority on legal and financial grounds. The Port Authority also retaliated, in a sense, by including a new safeguard in its contracts with bondholders. This prohibited the issuance of any bonds, secured by the general reserve fund, for a new facility unless the Port Authority first certified that the issuance of the bonds would not "materially impair the sound credit standing" of the Port Authority. App. 812a. Bill No. 16 was not passed.
16
In 1959, the two States, with the consent of Congress, Pub.L. 86-302, 73 Stat. 575, created the New York-New Jersey Transportation Agency to deal "with matters affecting public mass transit within and between the two (2) States." 1959 N.J.Laws, c. 13, § 3.1, as amended by c. 24; 1959 N.Y.Laws, c. 420, § 3.1.
17
Also in 1959, the two States enacted legislation providing that upon either State's election the Port Authority would be authorized to purchase and own railroad passenger cars for the purpose of leasing them to commuter railroads. 1959 N.J.Laws, c. 25; 1959 N.Y.Laws, c. 638. Bonds issued for this purpose would be guaranteed by the electing State. New York so elected, N.Y.Const., Art. X, § 7, effective January 1, 1962, and approximately $100 million of Commuter Car Bonds were issued by the Port Authority to purchase about 500 air-conditioned passenger cars and eight locomotives used on the Penn Central and Long Island Railroads.
18
E. The 1962 Statutory Covenant. In 1960 the takeover of the Hudson & Manhattan Railroad by the Port Authority was proposed. This was a privately owned interstate electric commuter system then linking Manhattan, Newark, and Hoboken through the Hudson tubes. It had been in reorganization for many years, and in 1959 the Bankruptcy Court and the United States District Court had approved a plan that left it with cash sufficient to continue operations for two years but with no funds for capital expenditures. In re Hudson & Manhattan R. Co., 174 F.Supp. 148 (S.D.N.Y.1959), aff'd sub nom. Spitzer v. Stichman, 278 F.2d 402 (CA2 1960). A special committee of the New Jersey Senate was formed to determine whether the Port Authority was "fulfilling its statutory duties and obligations," App. 605a. The committee concluded that the solution to bondholder concern was "(l)imiting by a constitutionally protected statutory covenant with Port Authority bondholders the extent to which the Port Authority revenues and reserves pledged to such bondholders can in the future be applied to the deficits of possible future Port Authority passenger railroad facilities beyond the original Hudson & Manhattan Railroad system." Id., at 656a. And the trial court found that the 1962 New Jersey Legislature "concluded it was necessary to place a limitation on mass transit deficit operations to be undertaken by the Authority in the future so as to promote continued investor confidence in the Authority." 134 N.J.Super., at 178, 338 A.2d, at 863-864.
19
The statutory covenant of 1962 was the result. The covenant itself was part of the bistate legislation authorizing the Port Authority to acquire, construct, and operate the Hudson & Manhattan Railroad and the World Trade Center. The statute in relevant part read:
20
"The 2 States covenant and agree with each other and with the holders of any affected bonds, as hereinafter defined, that so long as any of such bonds remain outstanding and unpaid and the holders thereof shall not have given their consent as provided in their contract with the port authority, (a) . . . and (b) neither the States nor the port authority nor any subsidiary corporation incorporated for any of the purposes of this act will apply any of the rentals, tolls, fares, fees, charges, revenues or reserves, which have been or shall be pledged in whole or in part as security for such bonds, for any railroad purposes whatsoever other than permitted purposes hereinafter set forth." 1962 N.J.Laws, c. 8, § 6; 1962 N.Y.Laws, c. 209, § 6.9
21
The "permitted purposes" were defined to include (i) the Hudson & Manhattan as then existing, (ii) railroad freight facilities, (iii) tracks and related facilities on Port Authority vehicular bridges, and (iv) a passenger railroad facility if the Port Authority certified that it was "self-supporting" or, if not, that at the end of the preceding calendar year the general reserve fund contained the prescribed statutory amount, and that all the Port Authority's passenger revenues, including the Hudson & Manhattan, would not produce deficits in excess of "permitted deficits."
22
A passenger railroad would be deemed "self-supporting" if the amount estimated by the Authority as average annual net income equaled or exceeded the average annual debt service for the following decade. Though the covenant was not explicit on the point, the States, the Port Authority, and its bond counsel have agreed that any state subsidy might be included in the computation of average annual net income of the facility.
23
"Permitted deficits," the alternative method under permitted purpose (iv), was defined to mean that the annual estimated deficit, including debt service, of the Hudson tubes and any additional non-self-sustaining railroad facility could not exceed one-tenth of the general reserve fund, or 1% of the Port Authority's total bonded debt.
24
The terms of the covenant were self-evident. Within its conditions the covenant permitted, and perhaps even contemplated, additional Port Authority involvement in deficit rail mass transit as its financial position strengthened, since the limitation of the covenant was linked to, and would expand with, the general reserve fund.
25
A constitutional attack on the legislation containing the covenant was promptly launched. New Jersey and New York joined in the defense. The attack proved unsuccessful. Courtesy Sandwich Shop, Inc. v. Port of New York Authority, 12 N.Y.2d 379, 240 N.Y.S.2d 1, 190 N.E.2d 402, appeal dismissed, 375 U.S. 78, 84 S.Ct. 194, 11 L.Ed.2d 141 (1963). See Kheel v. Port of New York Authority, 331 F.Supp. 118 (S.D.N.Y.1971), aff'd, 457 F.2d 46 (C.A. 2), cert. denied, 409 U.S. 983, 93 S.Ct. 324, 34 L.Ed.2d 248 (1972).
26
With the legislation embracing the covenant thus effective, the Port Authority on September 1, 1962, assumed the ownership and operating responsibilities of the Hudson & Manhattan through a wholly owned subsidiary, Port Authority Trans-Hudson Corporation (PATH). Funds necessary for this were realized by the successful sale of bonds to private investors accompanied by the certification required by § 7 of the Consolidated Bond Resolution that the operation would not materially impair the credit standing of the Port Authority, the investment status of the Consolidated Bonds, or the ability of the Port Authority to fulfill its commitments to bondholders. This § 7 certification was based on a projection that the annual net loss of the PATH system would level off at about $6.6 million from 1969 to 1991. At the time the certification was made the general reserve fund contained $69 million, and thus the projected PATH deficit was close to the level of "permitted deficits" under the 1962 covenant. 134 N.J.Super., at 163, and n. 27, 338 A.2d, at 855, and n. 27.
27
The PATH fare in 1962 was 30 cents and has remained at that figure despite recommendations for increase. App. 684a-686a. As a result of the continuation of the low fare, PATH deficits have far exceeded the initial projection. Thus, although the general reserve fund had grown to $173 million by 1973, substantially increasing the level of permitted deficits to about $17 million, the PATH deficit had grown to $24.9 million. In accordance with a stipulation of the parties, id., at 682a-683a, the trial court found that the PATH deficit so exceeded the covenant's level of permitted deficits that the Port Authority was unable to issue bonds for any new passenger railroad facility that was not self-supporting. 134 N.J.Super., at 163 n. 26, 338 A.2d, at 855 n. 26.10
28
F. Prospective Repeal of the Covenant. Governor Cahill of New Jersey and Governor Rockefeller of New York in April 1970 jointly sought increased Port Authority participation in mass transit. In November 1972 they agreed upon a plan for expansion of the PATH system. This included the initiation of direct rail service to Kennedy Airport and the construction of a line to Plainfield, N. J., by way of Newark Airport. The plan anticipated a Port Authority investment of something less than $300 million out of a projected total cost of $650 million, with the difference to be supplied by federal and state grants. It also proposed to make the covenant inapplicable with respect to bonds issued after the legislation went into effect. This program was enacted, effective May 10, 1973, and the 1962 covenant was thereby rendered inapplicable, or in effect repealed, with respect to bonds issued subsequent to the effective date of the new legislation. 1972 N.J.Laws, c. 208; 1972 N.Y.Laws, c. 1003, as amended by 1973 N.Y.Laws, c. 318.11
29
G. Retroactive Repeal of the Covenant. It soon developed that the proposed PATH expansion would not take place as contemplated in the Governors' 1972 plan. New Jersey was unwilling to increase its financial commitment in response to a sharp increase in the projected cost of constructing the Plainfield extension. As a result the anticipated federal grant was not approved. App. 717a.
30
New Jersey had previously prevented outright repeal of the 1962 covenant, but its attitude changed with the election of a new Governor in 1973. In early 1974, when bills were pending in the two States' legislatures to repeal the covenant retroactively, a national energy crisis was developing. On November 27, 1973, Congress had enacted the Emergency Petroleum Allocation Act, 87 Stat. 627, as amended, 15 U.S.C. § 751 et seq. (1970 ed., Supp. V). In that Act Congress found that the hardships caused by the oil shortage "jeopardize the normal flow of commerce and constitute a national energy crisis which is a threat to the public health, safety, and welfare." 87 Stat. at 628, 15 U.S.C. § 751(a)(3). This time, proposals for retroactive repeal of the 1962 covenant were passed by the legislature and signed by the Governor of each State. 1974 N.J.Laws, c. 25; 1974 N.Y.Laws, c. 993.12
31
On April 10, 1975, the Port Authority announced an increase in its basic bridge and tunnel tolls designed to raise an estimated $40 million annually. App. 405a-407a, 419a-421a, 528a. This went into effect May 5 and was, it was said, "(t)o increase (the Port Authority's) ability to finance vital mass transit improvements." Id., at 405a.
II
32
At the time the Constitution was adopted, and for nearly a century thereafter, the Contract Clause was one of the few express limitations on state power. The many decisions of this Court involving the Contract Clause are evidence of its important place in our constitutional jurisprudence. Over the last century, however, the Fourteenth Amendment has assumed a far larger place in constitutional adjudication concerning the States. We feel that the present role of the Contract Clause is largely illuminated by two of this Court's decisions. In each, legislation was sustained despite a claim that it had impaired the obligations of contracts.
33
Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), is regarded as the leading case in the modern era of Contract Clause interpretation. At issue was the Minnesota Mortgage Moratorium Law, enacted in 1933, during the depth of the Depression and when that state was under severe economic stress, and appeared to have no effective alternative. The statute was a temporary measure that allowed judicial extension of the time for redemption; a mortgagor who remained in possession during the extension period was required to pay a reasonable income or rental value to the mortgagee. A closely divided Court, in an opinion by Mr. Chief Justice Hughes, observed that "emergency may furnish the occasion for the exercise of power" and that the "constitutional question presented in the light of an emergency is whether the power possessed embraces the particular exercise of it in response to particular conditions." Id., at 426, 54 S.Ct., at 235. It noted that the debates in the Constitutional Convention were of little aid in the construction of the Contract Clause, but that the general purpose of the Clause was clear: to encourage trade and credit by promoting confidence in the stability of contractual obligations. Id., at 427-428, 54 S.Ct. at 235-36. Nevertheless, a State "continues to possess authority to safeguard the vital interests of its people. . . . This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this Court." Id., at 434-435, 54 S.Ct. at 239. The great clauses of the Constitution are to be considered in the light of our whole experience, and not merely as they would be interpreted by its Framers in the conditions and with the outlook of their time. Id., at 443, 57 S.Ct. at 242.
34
This Court's most recent Contract Clause decision is El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965). That case concerned a 1941 Texas statute that limited to a 5-year period the reinstatement rights of an interest-defaulting purchaser of land from the State. For many years prior to the enactment of that statute, such a defaulting purchaser, under Texas law, could have reinstated his claim to the land upon written request and payment of delinquent interest, unless rights of third parties had intervened. This Court held that "it is not every modification of a contractual promise that impairs the obligation of contract under federal law." Id., at 506-507, 85 S.Ct., at 583. It observed that the State "has the 'sovereign right . . . to protect the . . . general welfare of the people' " and " 'we must respect the "wide discretion on the part of the legislature in determining what is and what is not necessary," ' " id., at 508-509, 85 S.Ct., at 584, quoting East New York Savings Bank v. Hahn, 326 U.S. 230, 232-233, 66 S.Ct. 69, 70, 90 L.Ed. 34 (1945). The Court recognized that "the power of a State to modify or affect the obligation of contract is not without limit," but held that "the objects of the Texas statute make abundantly clear that it impairs no protected right under the Contract Clause." 379 U.S., at 509, 85 S.Ct., at 584.
35
Both of these cases eschewed a rigid application of the Contract Clause to invalidate state legislation. Yet neither indicated that the Contract Clause was without meaning in modern constitutional jurisprudence, or that its limitation on state power was illusory. Whether or not the protection of contract rights comports with current views of wise public policy, the Contract Clause remains a part of our written Constitution. We therefore must attempt to apply that constitutional provision to the instant case with due respect for its purpose and the prior decisions of this Court.
III
36
We first examine appellant's general claim that repeal of the 1962 covenant impaired the obligation of the States' contract with the bondholders. It long has been established that the Contract Clause limits the power of the States to modify their own contracts as well as to regulate those between private parties. Fletcher v. Peck, 6 Cranch 87, 137-139, 3 L.Ed. 162 (1810); Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed. 629 (1819). Yet the Contract Clause does not prohibit the States from repealing or amending statutes generally, or from enacting legislation with retroactive effects.13 Thus, as a preliminary matter, appellant's claim requires a determination that the repeal has the effect of impairing a contractual obligation.
37
In this case the obligation was itself created by a statute, the 1962 legislative covenant. It is unnecessary, however, to dwell on the criteria for determining whether state legislation gives rise to a contractual obligation.14 The trial court found, 134 N.J.Super., at 183 n. 38, 338 A.2d, at 866 n. 38, and appellees do not deny, that the 1962 covenant constituted a contract between the two States and the holders of the Consolidated Bonds issued between 1962 and the 1973 prospective repeal.15 The intent to make a contract is clear from the statutory language: "The 2 States covenant and agree with each other and with the holders of any affected bonds. . . ." 1962 N.J.Laws, c. 8, § 6; 1962 N.Y.Laws c. 209, § 6. Moreover, as the chronology set forth above reveals, the purpose of the covenant was to invoke the constitutional protection of the Contract Clause as security against repeal. In return for their promise, the States received the benefit they bargained for: public marketability of Port Authority bonds to finance construction of the World Trade Center and acquisition of the Hudson & Manhattan Railroad. We therefore have no doubt that the 1962 covenant has been properly characterized as a contractual obligation of the two States.
38
The parties sharply disagree about the value of the 1962 covenant to the bondholders. Appellant claims that after repeal the secondary market for affected bonds became "thin" and the price fell in relation to other formerly comparable bonds. This claim is supported by the trial court's finding that "immediately following repeal and for a number of months thereafter the market price for Port Authority bonds was adversely affected." 134 N.J.Super., at 180, 338 A.2d, at 865. Appellees respond that the bonds nevertheless retained an "A" rating from the leading evaluating services and that after an initial adverse effect they regained a comparable price position in the market. Findings of the trial court support these claims as well. Id., at 179-182, 338 A.2d, at 864-866. The fact is that no one can be sure precisely how much financial loss the bondholders suffered. Factors unrelated to repeal may have influenced price. In addition, the market may not have reacted fully, even as yet, to the covenant's repeal, because of the pending litigation and the possibility that the repeal would be nullified by the courts.
39
In any event, the question of valuation need not be resolved in the instant case because the State has made no effort to compensate the bondholders for any loss sustained by the repeal.16 As a security provision, the covenant was not superfluous; it limited the Port Authority's deficits and thus protected the general reserve fund from depletion. Nor was the covenant merely modified or replaced by an arguably comparable security provision. Its outright repeal totally eliminated an important security provision and thus impaired the obligation of the States' contract. See Richmond Mortgage & Loan Corp. v. Wachovia Bank & Trust Co., 300 U.S. 124, 128-129, 57 S.Ct. 338, 339, 81 L.Ed. 552 (1937).17
40
The trial court recognized that there was an impairment in this case: "To the extent that the repeal of the covenant authorizes the Authority to assume greater deficits for such purposes, it permits a diminution of the pledged revenues and reserves and may be said to constitute an impairment of the states' contract with the bondholders." 134 N.J.Super., at 183, 338 A.2d, at 866.
41
Having thus established that the repeal impaired a contractual obligation of the States, we turn to the question whether that impairment violated the Contract Clause.
IV
42
Although the Contract Clause appears literally to proscribe "any" impairment, this Court observed in Blaisdell that "the prohibition is not an absolute one and is not to be read with literal exactness like a mathematical formula." 290 U.S., at 428, 54 S.Ct., at 236. Thus, a finding that there has been a technical impairment is merely a preliminary step in resolving the more difficult question whether that impairment is permitted under the Constitution. In the instant case, as in Blaisdell, we must attempt to reconcile the strictures of the Contract Clause with the "essential attributes of sovereign power," id., at 435, 54 S.Ct. at 239, necessarily reserved by the States to safeguard the welfare of their citizens. Id., at 434-440, 54 S.Ct. at 238-240.
43
The trial court concluded that repeal of the 1962 covenant was a valid exercise of New Jersey's police power because repeal served important public interests in mass transportation, energy conservation, and environmental protection. 134 N.J.Super., at 194-195, 338 A.2d, at 873. Yet the Contract Clause limits otherwise legitimate exercises of state legislative authority, and the existence of an important public interest is not always sufficient to overcome that limitation. "Undoubtedly, whatever is reserved of state power must be consistent with the fair intent of the constitutional limitation of that power." Blaisdell, 290 U.S., at 439, 54 S.Ct. at 240. Moreover, the scope of the State's reserved power depends on the nature of the contractual relationship with which the challenged law conflicts.
44
The States must possess broad power to adopt general regulatory measures without being concerned that private contracts will be impaired, or even destroyed, as a result. Otherwise, one would be able to obtain immunity from the state regulation by making private contractual arrangements. This principle is summarized in Mr. Justice Holmes' well-known dictum: "One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them." Hudson Water Co. v. McCarter, 209 U.S. 349, 357, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908).18
45
Yet private contracts are not subject to unlimited modification under the police power. The Court in Blaisdell recognized that laws intended to regulate existing contractual relationships must serve a legitimate public purpose. 290 U.S., at 444-445, 54 S.Ct. at 242. A State could not "adopt as its policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them." Id., at 439, 54 S.Ct. at 240. Legislation adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption. Id., at 445-447, 54 S.Ct. at 242-43.19 As is customary in reviewing economic and social regulation, however, courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure. East New York Savings Bank v. Hahn, 326 U.S. 230, 66 S.Ct. 69, 90 L.Ed. 34 (1945).
46
When a State impairs the obligation of its own contract, the reserved-powers doctrine has a different basis. The initial inquiry concerns the ability of the State to enter into an agreement that limits its power to act in the future. As early as Fletcher v. Peck, the Court considered the argument that "one legislature cannot abridge the powers of a succeeding legislature." 6 Cranch, at 135. It is often stated that "the legislature cannot bargain away the police power of a State." Stone v. Mississippi, 101 U.S. 814, 817, 25 L.Ed. 1079 (1880).20 This doctrine requires a determination of the State's power to create irrevocable contract rights in the first place, rather than an inquiry into the purpose or reasonableness of the subsequent impairment. In short, the Contract Clause does not require a State to adhere to a contract that surrenders an essential attribute of its sovereignty.
47
In deciding whether a State's contract was invalid ab initio under the reserved-powers doctrine, earlier decisions relied on distinctions among the various powers of the State. Thus, the police power and the power of eminent domain were among those that could not be "contracted away," but the State could bind itself in the future exercise of the taxing and spending powers.21 Such formalistic distinctions perhaps cannot be dispositive, but they contain an important element of truth. Whatever the propriety of a State's binding itself to a future course of conduct in other contexts, the power to enter into effective financial contracts cannot be questioned. Any financial obligation could be regarded in theory as a relinquishment of the State's spending power, since money spent to repay debts is not available for other purposes. Similarly, the taxing power may have to be exercised if debts are to be repaid. Notwithstanding these effects, the Court has regularly held that the States are bound by their debt contracts.22
48
The instant case involves a financial obligation and thus as a threshold matter may not be said automatically to fall within the reserved powers that cannot be contracted away.23 Not every security provision, however, is necessarily financial. For example, a revenue bond might be secured by the State's promise to continue operating the facility in question; yet such a promise surely could not validly be construed to bind the State never to close the facility for health or safety reasons. The security provision at issue here, however, is different: The States promised that revenues and reserves securing the bonds would not be depleted by the Port Authority's operation of deficit-producing passenger railroads beyond the level of "permitted deficits." Such a promise is purely financial and thus not necessarily a compromise of the State's reserved powers.
49
Of course, to say that the financial restrictions of the 1962 covenant were valid when adopted does not finally resolve this case. The Contract Clause is not an absolute bar to subsequent modification of a State's own financial obligations.24 As with laws impairing the obligations of private contracts, an impairment may be constitutional if it is reasonable and necessary to serve an important public purpose. In applying this standard, however, complete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State's self-interest is at stake. A governmental entity can always find a use for extra money, especially when taxes do not have to be raised. If a State could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contract Clause would provide no protection at all.25
50
The trial court recognized to an extent the special status of a State's financial obligations when it held that total repudiation, presumably for even a worthwhile public purpose, would be unconstitutional. But the trial court regarded the protection of the Contract Clause as available only in such an extreme case: "The states' inherent power to protect the public welfare may be validly exercised under the Contract Clause even if it impairs a contractual obligation so long as it does not destroy it." 134 N.J.Super., at 190, 338 A.2d, at 870-871.
51
The trial court's "total destruction" test is based on what we think is a misreading of W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed. 1298 (1935).26 In the first place, the impairment held unconstitutional in Kavanaugh was one that affected the value of a security provision, and certainly not every bond would have been worthless. More importantly, Mr. Justice Cardozo needed only to state an "outermost limits" test in the Court's opinion, id., at 60, 55 S.Ct. at 556, because the impairment was so egregious. He expressly recognized that the actual line between permissible and impermissible impairments could well be drawn more narrowly. Thus the trial court was not correct when it drew the negative inference that any impairment less oppressive than the one in Kavanaugh was necessarily constitutional. The extent of impairment is certainly a relevant factor in determining its reasonableness. But we cannot sustain the repeal of the 1962 covenant simply because the bondholders' rights were not totally destroyed.
52
The only time in this century that alteration of a municipal bond contract has been sustained by this Court was in Faitoute Iron & Steel Co. v. City of Asbury Park, 316 U.S. 502, 62 S.Ct. 1129, 86 L.Ed. 1629 (1942). That case involved the New Jersey Municipal Finance Act, which provided that a bankrupt local government could be placed in receivership by a state agency. A plan for the composition of creditors' claims was required to be approved by the agency, the municipality, and 85% in amount of the creditors. The plan would be binding on nonconsenting creditors after a state court conducted a hearing and found that the municipality could not otherwise pay off its creditors and that the plan was in the best interest of all creditors. Id., at 504, 62 S.Ct. at 1130.
53
Under the specific composition plan at issue in Faitoute, the holders of revenue bonds received new securities bearing lower interest rates and later maturity dates. This Court, however, rejected the dissenting bondholders' Contract Clause objections. The reason was that the old bonds represented only theoretical rights; as a practical matter the city could not raise its taxes enough to pay off its creditors under the old contract terms. The composition plan enabled the city to meet its financial obligations more effectively. "The necessity compelled by unexpected financial conditions to modify an original arrangement for discharging a city's debt is implied in every such obligation for the very reason that thereby the obligation is discharged, not impaired." Id., at 511, 62 S.Ct. at 1134. Thus, the Court found that the composition plan was adopted with the purpose and effect of protecting the creditors, as evidenced by their more than 85% approval. Indeed, the market value of the bonds increased sharply as a result of the plan's adoption. Id., at 513, 62 S.Ct. at 1135.
54
It is clear that the instant case involves a much more serious impairment than occurred in Faitoute. No one has suggested here that the States acted for the purpose of benefiting the bondholders, and there is no serious contention that the value of the bonds was enhanced by repeal of the 1962 covenant. Appellees recognized that it would have been impracticable to obtain consent of the bondholders for such a change in the 1962 covenant, Brief for Appellees 97-98, even though only 60% approval would have been adequate. See n. 10, supra. We therefore conclude that repeal of the 1962 covenant cannot be sustained on the basis of this Court's prior decisions in Faitoute and other municipal bond cases.
V
55
Mass transportation, energy conservation, and environmental protection are goals that are important and of legitimate public concern. Appellees contend that these goals are so important that any harm to bondholders from repeal of the 1962 covenant is greatly outweighed by the public benefit. We do not accept this invitation to engage in a utilitarian comparison of public benefit and private loss. Contrary to Mr. Justice Black's fear expressed in sole dissent in El Paso v. Simmons, 379 U.S., at 517, 85 S.Ct., at 588, the Court has not "balanced away" the limitation on state action imposed by the Contract Clause. Thus a State cannot refuse to meet its legitimate financial obligations simply because it would prefer to spend the money to promote the public good rather than the private welfare of its creditors. We can only sustain the repeal of the 1962 covenant if that impairment was both reasonable and necessary to serve the admittedly important purposes claimed by the State.27
56
The more specific justification offered for the repeal of the 1962 covenant was the States' plan for encouraging users of private automobiles to shift to public transportation. The States intended to discourage private automobile use by raising bridge and tunnel tolls and to use the extra revenue from those tolls to subsidize improved commuter railroad service. Appellees contend that repeal of the 1962 covenant was necessary to implement this plan because the new mass transit facilities could not possibly be self-supporting and the covenant's "permitted deficits" level had already been exceeded. We reject this justification because the repeal was neither necessary to achievement of the plan nor reasonable in light of the circumstances.
57
The determination of necessity can be considered on two levels. First, it cannot be said that total repeal of the covenant was essential; a less drastic modification would have permitted the contemplated plan without entirely removing the covenant's limitations on the use of Port Authority revenues and reserves to subsidize commuter railroads.28 Second, without modifying the covenant at all, the States could have adopted alternative means of achieving their twin goals of discouraging automobile use and improving mass transit.29 Appellees contend, however, that choosing among these alternatives is a matter for legislative discretion. But a State is not completely free to consider impairing the obligations of its own contracts on a par with other policy alternatives. Similarly, a State is not free to impose a drastic impairment when an evident and more moderate course would serve its purposes equally well. In El Paso v. Simmons, supra, the imposition of a five-year statute of limitations on what was previously a perpetual right of redemption was regarded by this Court as "quite clearly necessary" to achieve the State's vital interest in the orderly administration of its school lands program. 379 U.S., at 515-516, 85 S.Ct., at 587. In the instant case the State has failed to demonstrate that repeal of the 1962 covenant was similarly necessary.
58
We also cannot conclude that repeal of the covenant was reasonable in light of the surrounding circumstances. In this regard a comparison with El Paso v. Simmons, supra, again is instructive. There a 19th century statute had effects that were unforeseen and unintended by the legislature when originally adopted. As a result speculators were placed in a position to obtain windfall benefits. The Court held that adoption of a statute of limitation was a reasonable means to "restrict a party to those gains reasonably to be expected from the contract" when it was adopted. 379 U.S., at 515, 85 S.Ct., at 587.30
59
By contrast, in the instant case the need for mass transportation in the New York metropolitan area was not a new development, and the likelihood that publicly owned commuter railroads would produce substantial deficits was well known. As early as 1922, over a half century ago, there were pressures to involve the Port Authority in mass transit. It was with full knowledge of these concerns that the 1962 covenant was adopted. Indeed, the covenant was specifically intended to protect the pledged revenues and reserves against the possibility that such concerns would lead the Port Authority into greater involvement in deficit mass transit.
60
During the 12-year period between adoption of the covenant and its repeal, public perception of the importance of mass transit undoubtedly grew because of increased general concern with environmental protection and energy conservation. But these concerns were not unknown in 1962, and the subsequent changes were of degree and not of kind. We cannot say that these changes caused the covenant to have a substantially different impact in 1974 than when it was adopted in 1962. And we cannot conclude that the repeal was reasonable in the light of changed circumstances.
61
We therefore hold that the Contract Clause of the United States Constitution prohibits the retroactive repeal of the 1962 covenant. The judgment of the Supreme Court of New Jersey is reversed.
62
It is so ordered.
63
Mr. Justice STEWART took no part in the decision of this case.
64
Mr. Justice POWELL took no part in the consideration or decision of this case.
65
Mr. Chief Justice BURGER, concurring.
66
In my view, to repeal the 1962 covenant without running afoul of the constitutional prohibition against the impairment of contracts, the State must demonstrate that the impairment was essential to the achievement of an important state purpose. Furthermore, the State must show that it did not know and could not have known the impact of the contract on that state interest at the time that the contract was made. So reading the Court's opinion, I join it.
67
For emphasis, I note that the Court pointedly does not hold that, on the facts of this case, any particular "less drastic modification" would pass constitutional muster, ante, at 30, and n. 28.
68
Mr. Justice BRENNAN, with whom Mr. Justice WHITE and Mr. Justice MARSHALL join, dissenting.
69
Decisions of this Court for at least a century have construed the Contract Clause largely to be powerless in binding a State to contracts limiting the authority of successor legislatures to enact laws in furtherance of the health, safety, and similar collective interests of the polity. In short, those decisions established the principle that lawful exercises of a State's police powers stand paramount to private rights held under contract. Today's decision, in invalidating the New Jersey Legislature's 1974 repeal of its predecessor's 1962 covenant, rejects this previous understanding and remolds the Contract Clause into a potent instrument for overseeing important policy determinations of the state legislature. At the same time, by creating a constitutional safe haven for property rights embodied in a contract, the decision substantially distorts modern constitutional jurisprudence governing regulation of private economic interests. I might understand, though I could not accept, this revival of the Contract Clause were it in accordance with some coherent and constructive view of public policy. But elevation of the Clause to the status of regulator of the municipal bond market at the heavy price of frustration of sound legislative policymaking is as demonstrably unwise as it is unnecessary. The justification for today's decision, therefore, remains a mystery to me, and I respectfully dissent.
70
* The Court holds that New Jersey's repeal of the 1962 covenant constitutes an unreasonable invasion of contract rights and hence an impairment of contract. The formulation of the legal standard by which the Court would test asserted impairments of contracts is, to me, both unprecedented and most troubling. But because the Constitution primarily is " 'intended to preserve practical and substantial rights, not to maintain theories,' " Faitoute Iron & Steel Co. v. City of Asbury Park, 316 U.S. 502, 514, 62 S.Ct. 1129, 1135, 86 L.Ed. 1629 (1942), it is necessary to sketch the factual background of this dispute before discussing the reasons for my concern. In my view, the Court's casual consideration both of the substantial public policies that prompted New Jersey's repeal of the 1962 covenant, and of the relatively inconsequential burdens that resulted for the Authority's creditors, belies its conclusion that the State acted unreasonably in seeking to relieve its citizens from the strictures of this earlier legislative policy.
A.
71
In an era when problems of municipal planning increasingly demand regional rather than local solutions, the Port Authority provides the New York-New Jersey community with a readymade, efficient regional entity encompassing some 1,500 square miles surrounding the Statue of Liberty. As the Court notes, from the outset public officials of both New York and New Jersey were well aware of the Authority's heavy dependence on public financing. Consequently, beginning in the decade prior to the enactment of the 1962 covenant, the Authority's general reserve bonds, its primary vehicle of public finance, have featured two rigid security devices designed to safeguard the investment of bondholders. First, pursuant to a so-called "1.3 test," the Authority has been disabled from issuing new consolidated bonds unless the best one-year net revenues derived from all of the Authority's facilities at least equal 130% of the prospective debt service for the calendar year during which the debt service for all outstanding and proposed bonds would be at a maximum. Second, according to a procedure known as a "section 7 certification," the Authority may not issue bonds to finance additional facilities unless it "shall certify" that the issue "will not, during the ensuing ten years or during the longest term of any such bonds proposed to be issued . . ., whichever shall be longer, . . . materially impair the sound credit standing of the Authority . . . ." App. 811a-812a
72
The 1962 covenant existed alongside these security provisions. Viewed in simplest terms, the covenant served to preclude Authority investment and participation in transportation programs by shifting the financial focal point from the creditworthiness of the Authority's activities as a whole to the solvency of each proposed new transit project. Whereas the 1.3 and section 7 tests permit expanded involvement in mass transportation provided that the enormous revenue-generating potential of the Authority's bridges and tunnels aggregately suffice to secure the investments of creditors, the covenant effectively foreclosed participation in any new project that was not individually "self-supporting."1 Both parties to this litigation are in apparent agreement that few functional mass transit systems are capable of satisfying this requirement.
73
Whether the 1962 New Jersey Legislature acted wisely in accepting this new restriction is, for me, quite irrelevant. What is important is that the passage of the years conclusively demonstrated that this effective barrier to the development of rapid transit in the port region squarely conflicts with the legitimate needs of the New York metropolitan community, and will persist in doing so into the next century.2 In the Urban Mass Transportation Assistance Act of 1970, 49 U.S.C. § 1601a, Congress found that "within urban areas, . . . the ability of all citizens to move quickly and at a reasonable cost (has become) an urgent national problem." Concurrently, the Clean Air Act, as amended, 42 U.S.C. § 1857 et seq., advocated the curtailment of air pollution through the development of transportation-control strategies that place heavy emphasis on rapid transit alternatives to the automobile. For northern New Jersey in particular, with ambient air-quality levels among the worst in the Nation, the Clean Air Act has led to new regulations premised on the policy:
74
"The development of large-scale mass transit facilities and the expansion and modification of existing mass transit facilities is essential to any effort to reduce automotive pollution through reductions in vehicle use. The planning, acquisition, and operation of a mass transit system is, and should remain, a regional or State responsibility. Many improvements are being planned in mass transit facilities in the State that will make it possible for more people to use mass transit instead of automobiles." 38 Fed.Reg. 31389 (1973).
75
Finally, the Court itself cites the Emergency Petroleum Allocation Act, 15 U.S.C. § 751(a)(3) (1970 ed., Supp. V), which signaled "a national energy crisis which is a threat to the public health, safety, and welfare," and sought to stimulate further initiatives toward the development of public transportation and similar programs. See ante, at 14.
76
It was in response to these societal demands that the New Jersey and New York Legislatures repealed the 1962 covenant. The trial court found:
77
"In April 1970 Governors Cahill and Rockefeller announced a joint program to increase the Port Authority's role in mass transportation by building a rail link to John F. Kennedy International Airport and extending PATH (a commuter rail line under Authority control) to Newark International Airport and other parts of New Jersey." 134 N.J.Super. 124, 168-169, 338 A.2d 833, 858 (1975).
78
But, the court found, this expansion "was not economically feasible under the terms of the 1962 covenant." Id., at 170, 338 A.2d, at 859. Consequently, the States repealed the covenant. On signing the New York legislation, Governor Rockefeller stated:
79
"Passed with overwhelming bipartisan support in both houses of the Legislature, the bill removes the absolute statutory prohibition against the use of the revenues of the Port of New York Authority for railroad purposes. That statutory covenant, together with the provision of the bi-state compact creating the Authority that neither State will construct competing facilities within the Port District, could forever preclude the two states from undertaking vitally needed mass transportation projects. In removing the present restriction, the bill would not jeopardize the security of Port Authority bondholders or their rights to maintain that security." Quoted ibid.
80
In following suit, New Jersey also expressly grounded its action upon the necessity of overturning " 'the restrictions imposed by the covenant (that) effectively preclude sufficient port authority participation in the development of a public transportation system in the port district.' " Id., at 172, 338 A.2d, at 860. Approximately one year later, on April 10, 1975, the Port Authority announced an increase in bridge and tunnel tolls amounting to $40 million, the resulting revenue designed to assist in the financing of passenger transportation facilities without jeopardizing the reserve fund set aside for the Authority's creditors.
81
The Court's consideration of this factual background is, I believe, most unsatisfactory. The Court never explicitly takes issue with the core of New Jersey's defense of the repeal: that the State was faced with serious and growing environmental, energy, and transportation problems, and the covenant worked at cross-purposes with efforts at remedying these concerns. Indeed, the Court candidly concedes that the State's purposes in effectuating the 1974 repeal were "admittedly important." Ante, at 29. Instead, the Court's analysis focuses upon related, but peripheral, matters.
82
For example, several hypothetical alternative methods are proposed whereby New Jersey might hope to secure funding for public transportation, and these are made the basis for a holding that repeal of the covenant was not "necessary." Ante, at 29-31. Setting aside the propriety of this surprising legal standard,3 the Court's effort at fashioning its own legislative program for New York and New Jersey is notably unsuccessful. In fact, except for those proffered alternatives which also amount to a repeal or substantial modification of the 1962 covenant,4 none of the Court's suggestions is compatible with the basic antipollution and transportation-control strategies that are crucial to metropolitan New York. As the Court itself accurately recognizes, the environmental and transportation program for the New York area rests upon a two-step campaign: "The States inten(d) (1) to discourage private automobile use by raising bridgee and tunnel tolls and (2) to use the extra revenue from those tolls to subsidize improved commuter railroad service." Ante, at 29. This coordinated two-step strategy has not been arbitrarily or casually created, but is dictated by contemporaneous federal enactments such as the Clean Air Act,5 and stems both from New York City's unique geographic situation6 and from long-standing provisions in federal law that require the existence of "reasonable and just" expenses which may include diversion to mass transit subsidies as a precondition to any increase in interstate bridge tolls.7 The Court's various alternative proposals, while perhaps interesting speculations, simply are not responsive to New York's and New Jersey's real environmental and traffic problems,8 and, in any event, intrude the Court deeply into complex and localized policy matters that are for the States' legislatures and not the judiciary to resolve.
83
Equally unconvincing is the Court's contention that repeal of the 1962 covenant was unreasonable because the environmental and energy concerns that prompted such action "were not unknown in 1962, and the subsequent changes were of degree and not of kind." Ante, at 32. Nowhere are we told why a state policy, no matter how responsive to the general welfare of its citizens, can be reasonable only if it confronts issues that previously were absolutely unforeseen.9 Indeed, this arbitrary perspective seems peculiarly inappropriate in a case like this where at least three new and independent congressional enactments between the years 1962 and 1974 summoned major urban centers like New York and New Jersey to action in the environmental, energy, and transportation fields. In short, on this record, I can neither understand nor accept the Court's characterization of New Jersey's action as unreasonable.
B
84
If the Court's treatment of New Jersey's legitimate policy interests is inadequate, its consideration of the countervailing injury ostensibly suffered by the appellant is barely discernible at all. For the Court apparently holds that a mere "technical impairment" of contract suffices to subject New Jersey's repealer to serious judicial scrutiny and invalidation under the Contract Clause. Ante, at 21. The Court's modest statement of the economic injury that today attracts its judicial intervention is, however, understandable. For fairly read, the record before us makes plain that the repeal of the 1962 covenant has occasioned only the most minimal damage on the part of the Authority's bondholders.
85
Obviously, the heart of the obligation to the bondholders and the interests ostensibly safeguarded by the 1962 covenant is the periodic payment of interest and the repayment of principal when due. The Court does not, and indeed cannot, contend that either New Jersey or the Authority has called into question the validity of these underlying obligations. No creditor complains that public authorities have defaulted on a coupon payment or failed to redeem a bond that has matured. In fact, the Court does not even offer any reason whatever for fearing that, as a result of the covenant's repeal, the securities in appellant's portfolio are jeopardized. Such a contention cannot be made in the face of the finding of the trial judge, who, in referring to the increasingly lucrative financial position of the Authority at the date of the covenant's repeal in comparison to 1962, concluded:
86
"Suffice it to say that between 1962 and 1974 the security afforded bondholders had been substantially augmented by a vast increase in Authority revenues and reserves, and the Authority's financial ability to absorb greater deficits, from whatever source and without any significant impairment of bondholder security, was correspondingly increased." 134 N.J.Super., at 194-195, 338 A.2d, at 873.10
87
By simply ignoring this unchallenged finding concerning the Authority's overall financial posture, the Court is able to argue that the repeal of the 1962 covenant impaired the Authority's bonds in two particular respects. First, it is suggested that repeal of the covenant may have adversely affected the secondary market for the securities. Ante, at 19. The Court, however, acknowledges that appellant has adduced only ambiguous evidence to support this contention, and that the actual price position of Authority bonds was, at most, only temporarily affected by the repeal. Ibid.11 In fact, the trial court also explicitly rejected the ultimate significance of this alleged injury:
88
"The bottom line of plaintiff's proofs on this issue is simply that the evidence fails to demonstrate that the secondary market price of Authority bonds was adversely affected by the repeal of the covenant, except for a short-term fall-off in price, the effect of which has now been dissipated insofar as it can be related to the enactment of the repeal." 134 N.J.Super., at 181-182, 338 A.2d, at 866 (emphasis supplied).
89
Secondly, repeal of the covenant is said to have canceled an important security provision enjoyed by the creditors. Ante, at 19. Of course, there is no question that appellant prefers the retention to the removal of the covenant, but surely this alone cannot be an acceptable basis for the Court's wooden application of the Contract Clause or for its conclusion that the repeal unfairly diminished bondholder security. By placing reliance on this superficial allegation of economic injury, the Court again is able simply to disregard the trial court's contrary finding that appellant's complaint of insecurity is without factual merit:
90
"The claim that bondholder security has been materially impaired or destroyed by the repeal is simply not supported by the record. The pledge of the Authority's net revenues and reserves remains intact; the Authority will still be barred from the issuance of any new consolidated bonds unless the 1.3 test required by the CBR is met, and the Authority will continue to be prohibited from the issuance of any consolidated bonds or other bonds secured by a pledge of the general reserve fund without the certification required by section 7 of the series resolutions, to wit, that in the opinion of the Authority the estimated expenditures in connection with any additional facility for which such bonds are to be issued would not, for the ensuing ten years, impair the sound credit standing of the Authority, the investment status of its consolidated bonds, or the Authority's obligations to its consolidated bondholders." 134 N.J.Super., at 196, 338 A.2d, at 874 (emphasis supplied).12
91
In brief, only by disregarding the detailed factual findings of the trial court in a systematic fashion is the Court today able to maintain that repeal of the 1962 covenant was anything but a minimal interference with the realistic economic interests of the bondholders. The record in this case fairly establishes that we are presented with a relatively inconsequential infringement of contract rights in the pursuit of substantial and important public ends. Yet, this meager record is seized upon by the Court as the vehicle for resuscitation of long discarded Contract Clause doctrine a step out of line with both the history of Contract Clause jurisprudence and with constitutional doctrine generally in its attempt to delineate the reach of the lawmaking power of state legislatures in the face of adverse claims by property owners.
II
92
The Court today dusts off the Contract Clause and thereby undermines the bipartisan policies of two States that manifestly seek to further the legitimate needs of their citizens. The Court's analysis, I submit, fundamentally misconceives the nature of the Contract Clause guarantee.
93
One of the fundamental premises of our popular democracy is that each generation of representatives can and will remain responsive to the needs and desires of those whom they represent. Crucial to this end is the assurance that new legislators will not automatically be bound by the policies and undertakings of earlier days. In accordance with this philosophy, the Framers of our Constitution conceived of the Contract Clause primarily as protection for economic transactions entered into by purely private parties, rather than obligations involving the State itself. See G. Gunther, Constitutional Law 604 (1975); B. Schwartz, A Commentary On the Constitution of the United States, pt. 2, The Rights of Property 274 (1965); B. Wright, The Contract Clause of the Constitution 15-16 (1938).13 The Framers fully recognized that nothing would so jeopardize the legitimacy of a system of government that relies upon the ebbs and flows of politics to "clean out the rascals" than the possibility that those same rascals might perpetuate their policies simply by locking them into binding contracts.
94
Following an early opinion of the Court, however, that took the first step of applying the Contract Clause to public undertakings, Fletcher v. Peck, 6 Cranch 87, 3 L.Ed. 162 (1810), later decisions attempted to define the reach of the Clause consistently with the demands of our governing processes. The central principle developed by these decisions, beginning at least a century ago, has been that Contract Clause challenges such as that raised by appellant are to be resolved by according unusual deference to the lawmaking authority of state and local governments. Especially when the State acts in furtherance of the variety of broad social interests that came clustered together under the rubric of "police powers," see E. Freund, The Police Power (1904) in particular, matters of health, safety, and the preservation of natural resources the decisions of this Court pursued a course of steady return to the intention of the Constitution's Framers by closely circumscribing the scope of the Contract Clause.
95
This theme of judicial self-restraint and its underlying premise that a State always retains the sovereign authority to legislate in behalf of its people was commonly expressed by the doctrine that the Contract Clause will not even recognize efforts of a State to enter into contracts limiting the authority of succeeding legislators to enact laws in behalf of the health, safety, and similar collective interests of the polity14 in short, that that State's police power is inalienable by contract. For example, in Fertilizing Co. v. Hyde Park, 97 U.S. 659, 24 L.Ed. 1036 (1878), the Illinois General Assembly granted to a fertilizer company an 1867 corporate charter to run for 50 years. The corporation thereafter invested in a factory and depot on land which it owned within the area designated by the charter. Five years later, the village authorities of Hyde Park adopted an ordinance that rendered the company's charter valueless by prohibiting the transportation of offal within the village and forbidding the operation of a fertilizer factory within the village confines. This Court nonetheless rejected the contention that the new ordinance offended the Contract Clause:
96
"We cannot doubt that the police power of the State was applicable and adequate to give an effectual remedy (to the nuisance). That power belonged to the States when the Federal Constitution was adopted. They did not surrender it, and they all have it now. . . .
97
'. . . Pure air and the comfortable enjoyment of property are as much rights belonging to (the village residents) as the right of possession and occupancy. . . .
98
"The (company's) charter was a sufficient license until revoked; but we cannot regard it as a contract guaranteeing, in the locality originally selected, exemption for fifty years from the exercise of the police power of the State, however serious the nuisance might become in the future . . . ." Id., 97 U.S. at 667, 669, 670.
99
Two years later, this principle of the Contract Clause's subservience to the States' broad lawmaking powers was reasserted in another context. In 1867, the Mississippi Legislature entered into a contract with a company whereby the latter was chartered to operate a lottery within the State "in consideration of a stipulated sum in cash . . . ." The next year the State adopted a constitutional provision abolishing lotteries. The Court once again unhesitantly dismissed a challenge to this provision grounded on the Contract Clause, Stone v. Mississippi, 101 U.S. 814, 817-818, 25 L.Ed. 1079 (1880):
100
" 'Irrevocable grants of property and franchises may be made if they do not impair the supreme authority to make laws for the right government of the State; but no legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police' . . . . No one denies . . . that (this legislative power) extends to all matters affecting the public health or the public morals."
101
Later cases continued to read the Contract Clause as qualified by the States' powers to legislate for the betterment of their citizens, while further expanding the range of permissible police powers. For example, in Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548, 34 S.Ct. 364, 58 L.Ed. 721 (1914), the State chartered and contracted with the plaintiff railway company to operate rail lines within the State. Pursuant to this contract, the railroad acquired in fee land for use as rights-of-way and similar transportation activities. The Court recognized that the charter was a binding contract, and that the company, in reliance on the agreement, had acquired land which it enjoys as "complete and unqualified" owner. Id., at 556, 558, 34 S.Ct. at 367. Yet, the Court brushed aside a constitutional challenge to subsequent ordinances that greatly circumscribed the railroad's activities on its own land:
102
"For it is settled that neither the 'contract' clause nor the 'due process' clause has the effect of overriding the power of the State to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property rights are held subject to its fair exercise." Id., at 558, 34 S.Ct., at 368.
103
In perfect conformity with these earlier cases that recognized the States' broad authority to legislate for the welfare of their citizens, New Jersey and New York sought to repeal the 1962 covenant in furtherance of "admittedly important" interests, ante, at 29, in environmental protection, clean air, and safe and efficient transportation facilities. The States' policy of deploying excess tolls for the maintenance and expansion of rapid transit was not oppressively or capriciously chosen; rather, it squarely complies with the commands embodied by Congress in several contemporaneous national laws. Supra, at 36-37. By invalidating the 1974 New Jersey repeal and, by necessity, like action by New York the Court regrettably departs from the virtually unbroken line of our cases that remained true to the principle that all private rights of property, even if acquired through contract with the State, are subordinated to reasonable exercises of the States' lawmaking powers in the areas of health (Fertilizing Co. v. Hyde Park, 97 U.S. 659, 24 L.Ed. 1036 (1878); Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 4 S.Ct. 652, 28 L.Ed. 585 (1884)); environmental protection (Hudson Water Co. v. McCarter, 209 U.S. 349, 28 S.Ct. 529, 52 L.Ed. 828 (1908); Manigault v. Springs, 199 U.S. 473, 26 S.Ct. 127, 50 L.Ed. 274 (1905); cf. Henderson Co. v. Thompson, 300 U.S. 258, 267, 57 S.Ct. 447, 451, 81 L.Ed. 632 (1937); Illinois Central R. Co. v. Illinois, 146 U.S. 387, 452-453, 13 S.Ct. 110, 117-18, 36 L.Ed. 1018 (1892)); and transportation (New Orleans Pub. Serv. v. New Orleans, 281 U.S. 682, 50 S.Ct. 449, 74 L.Ed. 1115 (1930); Erie R. Co. v. Public Util. Comm'rs, 254 U.S. 394, 41 S.Ct. 169, 65 L.Ed. 322 (1921); Denver & R. G. R. Co. v. Denver, 250 U.S. 241, 39 S.Ct. 450, 63 L.Ed. 958 (1919); Atlantic Coast Line R. Co. v. Goldsboro, supra; Northern Pac. R. Co. v. Duluth, 208 U.S. 583, 28 S.Ct. 341, 52 L.Ed. 630 (1908); Chicago, B. & Q. R. Co. v. Nebraska ex rel. Omaha, 170 U.S. 57, 18 S.Ct. 513, 42 L.Ed. 948 (1898); New York & N. E. R. Co. v. Bristol, 151 U.S. 556, 14 S.Ct. 437, 38 L.Ed. 269 (1894)). In its disregard of these teachings the Court treats New Jersey's social and economic policies with lesser sensitivity than have former Members of this Court who stressed the protection of contract and property rights. Even Mr. Justice Butler recognized that the Contract Clause does not interfere with state legislative efforts in behalf of its citizens' welfare unless such actions
104
"are . . . clearly unreasonable and arbitrary . . . (And in applying this standard) (u)ndoubtedly the city, acting as the arm of the State, has a wide discretion in determining what precautions in the public interest are necessary or appropriate under the circumstances." New Orleans Pub. Serv., supra, 281 U.S., at 686, 50 S.Ct., at 450.
105
Thus, with at best a passing nod to the long history of judicial deference to state lawmaking in the face of challenges under the Contract Clause, see ante, at 23 n.20, the Court today imposes severe substantive restraints on New Jersey's attempt to free itself from a contractual provision that it deems inconsistent with the broader interests of its citizens. Today's decision cannot be harmonized with our earlier cases by the simple expedient of labeling the covenant "purely financial," ante, at 25, rather than a forfeiture of "an essential attribute of (New Jersey's) sovereignty," ante, at 23. As either an analytical or practical matter, this distinction is illusory. It rests upon an analytical foundation that has long been discarded as unhelpful.15 And as a purely practical matter, an interference with state policy is no less intrusive because a contract prohibits the State from resorting to the most realistic and effective financial method of preserving its citizens' legitimate interests in healthy and safe transportation systems rather than directly proscribing the States from exercising their police powers in this area. The day has long since passed when analysis under the Contract Clause usefully can turn on such formalistic differences. Cf. Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 438, 54 S.Ct. 231, 240, 78 L.Ed. 413 (1934).
106
Nor is the Court's reading of earlier constitutional doctrine aided by cases where the Contract Clause was held to forestall state efforts intentionally to withhold from creditors the unpaid interest on, Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L.Ed. 403 (1867), or principal of, Louisiana ex rel. Hubert v. New Orleans, 215 U.S. 170, 30 S.Ct. 40, 54 L.Ed. 144 (1909); Wolff v. New Orleans, 103 U.S. 358, 26 L.Ed. 395 (1881), outstanding bonded indebtedness. Beyond dispute, the Contract Clause has come to prohibit a State from embarking on a policy motivated by a simple desire to escape its financial obligations or to injure others through "the repudiation of debts or the destruction of contracts or the denial of means to enforce them." Home Bldg. & Loan Assn. v. Blaisdell, supra, 290 U.S. at 439, 54 S.Ct., at 240. Nor will the Constitution permit a State recklessly to pursue its legitimate policies involving matters of health, safety, and the like with "studied indifference to the interests of the mortgagee or to his appropriate protection . . . ." W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 60, 55 S.Ct. 555, 557, 79 L.Ed. 1298 (1935). In this regard, the Court merely creates its own straw man when it characterizes the choice facing it today either as adopting its new, expansive view of the scope of the Contract Clause, or holding that the Clause "would provide no protection at all." Ante, at 26. The Constitution properly prohibits New Jersey and all States from disadvantaging their creditors without reasonable justification or in a spirit of oppression, and New Jersey claims no such prerogatives. But if a State, as here, manifestly acts in furtherance of its citizens' general welfare, and its choice of policy, even though infringing contract rights, is not "plainly unreasonable and arbitrary," Denver & R. G. R. Co. v. Denver, 250 U.S., at 244, 39 S.Ct., at 451, our inquiry should end:
107
"The question is . . . whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end." Home Bldg. & Loan Assn. v. Blaisdell, supra, 290 U.S. at 438, 54 S.Ct. at 240.
108
The Court, however, stands the Contract Clause completely on its head, see supra, at 45, and both formulates and strictly applies a novel standard for reviewing a State's attempt to relieve its citizens from unduly harsh contracts entered into by earlier legislators:16 Such "an impairment may be constitutional if it is reasonable and necessary to serve an important public purpose." Ante, at 25. Not only is this apparently spontaneous formulation virtually assured of frustrating the understanding of court and litigant alike,17 but it is wholly out of step with the modern attempts of this Court to define the reach of the Contract Clause when a State's own contractual obligations are placed in issue.
109
Mr. Justice Cardozo's opinion in W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed. 1298 (1935), is the prime exposition of the modern view. As a relief measure for financially depressed local governments, Arkansas enacted a statute that greatly diminished the remedies available to creditors under their bonds. This resulted in a remedial scheme whereby creditors were "without an effective remedy" for a minimum of 61/2 years, during which time the government's obligation to pay principal or interest was suspended. Id., at 61, 55 S.Ct., at 557. The Court invalidated the alteration in remedies. It did so, however, only after concluding that the challenged state law cut recklessly and excessively into the value of the creditors' bonds: "(W)ith studied indifference to the interests of the mortgagee or to his appropriate protection (the State has) taken from the mortgage the quality of an acceptable investment for a rational investor. Id., at 60, 55 S.Ct., at 557. "So viewed (the State's action is) seen to be an oppressive and unnecessary destruction of nearly all the incidents that give attractiveness and value to collateral security." Id., at 62, 55 S.Ct., at 557.
110
In the present case, the trial court expressly applied the Kavanaugh standard to New Jersey's repeal of the covenant, and properly found appellant's claim to be wanting in all material respects: In a detailed and persuasive discussion, the court concluded that neither New Jersey nor New York repealed the covenant with the intention of damaging their creditors' financial position. Rather, the States acted out of "vital interest(s)," for "(t)he passage of time and events between 1962 and 1974 satisfied the Legislatures of the two states that the public interest which the Port Authority was intended to serve could not be met within the terms of the covenant." 134 N.J.Super., at 194, 338 A.2d, at 873. And the creditors' corresponding injury did not even remotely reach that proscribed in Kavanaugh: Not only have Authority bonds remained "an 'acceptable investment,' " but "(t)he claim that bondholder security has been materially impaired or destroyed by the repeal is simply not supported by the record." Id., at 196, 338 A.2d, at 874.
111
The Court, as I read today's opinion, does not hold that the trial court erred in its application of the facts of this case to Mr. Justice Cardozo's formulation. Instead, it manages to take refuge in the fact that Kavanaugh left open the possibility that the test it enunciated may merely represent the " 'outermost limits' " of state authority. Ante, at 27. This, I submit, is a slender thread upon which to hang a belated revival of the Contract Clause some 40 years later. And, in any event, whatever opening remained after Kavanaugh was surely closed by Mr. Justice Frankfurter in Faitoute Iron & Steel Co. v. Asbury Park, 316 U.S. 502, 62 S.Ct. 1129, 86 L.Ed. 1629 (1942). Speaking for a unanimous Court, id., at 515, he employed the precise constitutional standard established by Mr. Justice Cardozo seven years earlier, and upheld under the Contract Clause a New Jersey plan to reorganize the outstanding debt obligations held by creditors of Asbury Park. The Court thereby authorized an impairment of creditors' financial interests that was far more substantial than that involved here: In fact, the reorganization plan both extended the maturity date of the city's bonds by some 30 years and reduced the relevant coupon rate. Yet, rather than suggesting, as does the Court today, that New Jersey possessed lesser authority in the public interest to amend its own contracts than to alter private undertakings, the Court made clear that the State's powers are more expansive
112
"(w)here . . . the respective parties are not private persons . . . but are persons or corporations whose rights and powers were created for public purposes, by legislative acts, and where the subject-matter of the contract is one which affects the safety and welfare of the public." Id., at 514 n. 2, 62 S.Ct. at 1136, quoting Chicago, B. & Q. R. Co. v. Nebraska, 170 U.S., at 72, 18 S.Ct., at 519.
113
In my view, the fact that New Jersey's repeal of the 1962 covenant satisfies the constitutional standards defined in Kavanaugh and Faitoute should, as the state courts concluded, terminate this litigation. But even were I to agree that the test in Kavanaugh remains open to further refinement, that, I repeat, would hardly justify the Court's attempt to deploy the Contract Clause as an apparently unyielding instrument for policing the policies of New Jersey and New York. For such an interpretation plainly is at odds with the principles articulated in Kavanaugh and Faitoute, and subsequently reconfirmed by El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965). The Court there considered a provision of Texas law that abolished an unlimited redemption period for landowners whose land had been defaulted to the State for nonpayment of interest, substituting a 5-year reinstatement period in its place. Unlike appellant here, Simmons at least could claim to have suffered tangible economic injury by virtue of the State's modification of his land-sale contract; indeed, as a result of that "impairment" he permanently lost property to the State. And, of course, Texas' "self-interest (was) at stake," ante, at 26, since it alone was the beneficiary of Simmons' curtailed right of reinstatement. Yet, properly applying the teachings of Blaisdell, Kavanaugh, and Faitoute, the Court had little difficulty in sustaining the measure as a means of removing clouds on title arising from pending reinstatement rights, 379 U.S., at 508-509, 85 S.Ct., at 583 (citations omitted):
114
"The Blaisdell opinion, which amounted to a comprehensive restatement of the principles underlying the application of the Contract Clause, makes it quite clear that '(n)ot only is the constitutional provision qualified by the measure of control which the State retains over remedial processes, but the State also continues to possess authority to safeguard the vital interests of its people. It does not matter that legislation appropriate to that end "has the result of modifying or abrogating contracts already in effect." . . .' 'Once we are in this domain of the reserve power of a State we must respect the "wide discretion on the part of the legislature in determining what is and what is not necessary." ' " It need hardly be said that today's decision is markedly out of step with this deferential philosophy. The Court's willingness to uphold an impairment of contract no matter how "technical" the injury only on a showing of "necessity" ante, at 29-31, is particularly distressing, for this Court always will be able to devise abstract alternatives to the concrete action actually taken by a State. For example, in virtually every decided Contract Clause case, the government could have exercised the Court's "lesser alternative" of resorting to its powers of taxation as a substitute for modifying overly restrictive contracts. Ante, at 30 n.29. Nothing, at least on the level of abstraction and conjecture engaged in by the Court today, prevented the appropriation of monies by Illinois to buy back or modify the corporate charter of the polluting fertilizer company in Fertilizing Co. v. Hyde Park, 97 U.S. 659, 24 L.Ed. 1036 (1878); or by New Jersey to ensure the financial solvency of Asbury Park bonds, Faitoute Iron & Steel Co. v. City of Asbury Park, ; or by Texas to purchase the unlimited redemption rights involved in El Paso v. Simmons, supra. Yet, in all these cases, modifications of state contracts were countenanced, and this Court did not feel compelled or qualified to instruct the state legislatures how best to pursue their business. In brief, these cases recognized that when economic matters are concerned, "the availability of alternatives does not render the (decisionmaker's) choice invalid." Knebel v. Hein, 429 U.S. 288, 294, 97 S.Ct. 549, 553, 50 L.Ed.2d 485 (1977). State legislation "may not be held unconstitutional simply because a court finds it unnecessary, in whole or in part." Whalen v. Roe, 429 U.S. 589, 597, 97 S.Ct. 869, 875, 51 L.Ed.2d 64 (1977).
115
By the same token, if unforeseeability is the key to a "reasonable" decision, as the Court now contends, ante, at 32, almost all prior cases again must be repudiated. Surely the legislators of Illinois could not convincingly have claimed surprise because a fertilizer company polluted the air and transported fertilizer to its factory, Fertilizing Co. v. Hyde Park, supra. Nor was it unforeseeable to Mississippi that a corporation which was expressly chartered to operate a lottery, in fact, did so, Stone v. Mississippi, 101 U.S. 814. And, of course, it was "not unknown," ante, at 32, to either debtor or creditor that a municipality's financial condition might falter as in Faitoute Iron & Steel Co. v. City of Asbury Park, supra; indeed, the foreseeability of that very risk inheres in the process of selecting an appropriate coupon rate. Yet, in all of these instances this Court did not construe the Contract Clause to prevent the States from confronting their real problems if and when their legislators came to believe that such action was warranted. It is not our province to contest the "reasonable judgments" of the duly authorized decision-makers. Knebel v. Hein, supra, 429 U.S. 288, 297, 97 S.Ct. 549, 555, 50 L.Ed.2d 485 (1977).
116
Thus, as I had occasion to remark only last Term, the Court again offers a constitutional analysis that rests upon "abstraction(s) without substance," National League of Cities v. Usery, 426 U.S. 833, 860, 96 S.Ct. 2465, 2478, 49 L.Ed.2d 245 (1976) (dissenting opinion). Given that this is the first case in some 40 years in which this Court has seen fit to invalidate purely economic and social legislation on the strength of the Contract Clause, one may only hope that it will prove a rare phenomenon, turning on the Court's particularized appraisal of the facts before it. But there also is reason for broader concern. It is worth remembering that there is nothing sacrosanct about a contract. All property rights, no less than a contract, are rooted in certain "expectations" about the sanctity of one's right of ownership. Compare ante, at 19-21, n.17, with J. Bentham, Theory of Legislation c. 8 (1911 ed.). And other constitutional doctrines are akin to the Contract Clause in directing their protections to the property interests of private parties. Hence the command of the Fifth Amendment that "private property (shall not) be taken for public use, without just compensation" also "remains a part of our written Constitution." Ante, at 16. And during the heyday of economic due process associated with Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), and similar cases long since discarded, see Whalen v. Roe, supra, 429 U.S. 589, 597, 97 S.Ct. 869, 875, 51 L.Ed.2d 64 (1977), this Court treated "the liberty of contract" under the Due Process Clause as virtually indistinguishable from the Contract Clause. G. Gunther, Constitutional Law, at 603-604 (1975); Hale, The Supreme Court and the Contract Clause: III, 57 Harv.L.Rev. 852, 890-891 (1944). In more recent times, however, the Court wisely has come to embrace a coherent, unified interpretation of all such constitutional provisions, and has granted wide latitude to "a valid exercise of (the States') police powers," Goldblatt v. Hempstead, 369 U.S. 590, 592, 82 S.Ct. 987, 989, 8 L.Ed.2d 130 (1962), even if it results in severe violations of property rights. See Pittsburgh v. Alco Parking Corp., 417 U.S. 369, 94 S.Ct. 2291, 41 L.Ed.2d 132 (1974); Sproles v. Binford, 286 U.S. 374, 388-389, 52 S.Ct. 581, 585, 76 L.Ed. 1167 (1932); Miller v. Schoene, 276 U.S. 272, 279-280, 48 S.Ct. 246, 247, 72 L.Ed. 568 (1928); cf. Williamson v. Lee Optical Co., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955). If today's case signals a return to substantive constitutional review of States' policies, and a new resolve to protect property owners whose interest or circumstances may happen to appeal to Members of this Court, then more than the citizens of New Jersey and New York will be the losers.
III
117
I would not want to be read as suggesting that the States should blithely proceed down the path of repudiating their obligations, financial or otherwise. Their credibility in the credit market obviously is highly dependent on exercising their vast lawmaking powers with self-restraint and discipline, and I, for one, have little doubt that few, if any, jurisdictions would choose to use their authority "so foolish(ly) as to kill a goose that lays golden eggs for them," Erie R. Co. v. Public Util. Comm'rs, supra, 254 U.S., at 410, 41 S.Ct., at 171. But in the final analysis, there is no reason to doubt that appellant's financial welfare is being adequately policed by the political processes and the bond marketplace itself.18 The role to be played by the Constitution is at most a limited one. Supra, at 52-53. For this Court should have learned long ago that the Constitution be it through the Contract or Due Process Clause can actively intrude into such economic and policy matters only if my Brethren are prepared to bear enormous institutional and social costs. Because I consider the potential dangers of such judicial interference to be intolerable, I dissent.
1
"No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . ." U.S.Const., Art. I, § 10, cl. 1.
2
The name originally was "The Port of New York Authority." 1921 N.J.Laws, c. 151, p. 416; 1921 N.Y.Laws, c. 154, p. 496. It was changed to "The Port Authority of New York and New Jersey," effective July 1, 1972. 1972 N.J.Laws, c. 69; 1972 N.Y.Laws, c. 531.
3
Appellant is trustee for the Fortieth and Forty-first Series of Port Authority Consolidated Bonds, with an aggregate principal amount of $200 million. At the time the complaint was filed, appellant also held approximately $96 million of Consolidated Bonds in its own account, as custodian, and as fiduciary in several capacities. There were then over $1,600 million of Consolidated Bonds outstanding.
4
The State of New York is not a party to this case, although its Attorney General has filed a brief as amicus curiae. A challenge to the parallel New York statute has been pending in the Supreme Court of New York, County of New York, since 1974. United States Trust Co. of New York v. New York, No. 09128/74.
5
The Port Authority possessed no taxing power and was unable to pledge the credit of either State. The trial court found:
"Under the terms of the Compact the power to levy taxes or to pledge the credit of either state was expressly withheld from the Authority. From its inception, with the exception of monies advanced as loans by the states, the Authority was required to finance its facilities solely with money borrowed from the public and to be repaid out of the revenues derived from its operations. By reason of these financial limitations two concepts initially emerged which have played an important role in the realization of the purposes for which the Authority was created: first, the specific projects undertaken by the Authority should be self-supporting, i. e., the revenues of each should be sufficient to cover its operating expenses and debt service requirements; and second, since the Authority is a public agency over which its creditors have no direct control, the bondholders should be protected by covenants with the Authority and with the states which have ultimate control over its operations." 134 N.J.Super. 124, at 139-140, 338 A.2d 833, 841 (1975).
The two States subsequently took steps to protect the Port Authority's financial integrity. See, for example, the 1925 statutory declarations not to authorize the construction of competitive bridges within the district or to limit the right of the Port Authority to levy such charges and tolls as it deemed necessary to produce revenues to fund its bonds. 1925 N.J.Laws, c. 37, § 5; 1925 N.Y.Laws, c. 210, § 5.
6
The parties are not in agreement as to the original perception of the compact and the plan. The appellant claims that the Port Authority was organized "as a freight coordinating agency," Brief for Appellant 5, whereas the appellees challenge that description and emphasize the presence of a mass transit problem as a factor of profound concern in the Port Authority's development. Brief for Appellees 2-5. The trial court found that neither the commission which recommended the creation of the Port Authority nor the comprehensive plan contemplated responsibility of the agency for passenger transit. 134 N.J.Super., at 134-139, 338 A.2d, at 838-841.
7
Governor Alfred E. Smith in his statement in support of his veto said:
"(I)t has been a great disappointment to me to find that the opposition of the railroads has prevented to date the making of real progress in working out the program of freight distribution in the port which always has been the main object and purpose of the Port of New York Authority. I am satisfied that the Port Authority should stick to this program and I am entirely unwilling to give my approval to any measure which at the expense of the solution of the great freight distribution problem will set the Port Authority off on an entirely new line of problem connected with the solution of the suburban passenger problem." App. 573a-574a.
8
The appellees state that the creation of the general reserve fund "made the Port Authority's fiscal strength possible." Brief for Appellees 6 n. 7.
The parties, however, are in disagreement as to the actual and proper fiscal policy of the Port Authority. Appellant claims that each facility should have prospects of producing sufficient revenue to support itself. Appellees' position is apparent from their assertion that although the self-supporting-facility concept may have "initially emerged," as the trial court stated, 134 N.J.Super., at 140, 338 A.2d, at 841, "the concept had no practical significance because it was not attained prior to 1931 and was unnecessary after 1931," with the establishment of the general reserve fund. Brief for appellees 7.
The trial court observed that upon the adoption of the Consolidated Bonds Resolution in 1952, the self-supporting-facility concept "ceased to have the significance previously attached to it." 134 N.J.Super., at 143, 338 A.2d, at 843.
9
Not at issue in the instant case is part (a) of § 6 of the statutory covenant (omitted in the quoted material in the text), which promises that the States will not impair the Port Authority's control over its fees or services. This provision has not been repealed, even prospectively.
10
Notwithstanding the "permitted deficits" formula, the covenant permits use of Port Authority revenues for mass transit if 60% of the bondholders give their consent. The procedures for obtaining such consent are provided in § 16(b) of the Consolidated Bond Resolution. App. 802a-809a. The Port Authority commissioned a study by First Boston Corporation in 1971 that proposed placing a surcharge on bridge and tunnel tolls, with the extra revenues going to a special fund to secure bonds for mass transportation projects. This proposal would not have diminished the historic reserves pledged to secure the bonds. The study concluded, however, that some increase in the interest rates of existing bonds would have been necessary to obtain a favorable vote of the bondholders. Id., at 696a-699a. There is some evidence in the record that such a proposal could not win bondholder approval, partly because the requisite procedures are unwieldy. Id., at 191a-192a.
11
The introductory statement appended to the New Jersey bill recited:
"The bill is also designed to preclude the application of the 1962 covenant to holders of bonds newly issued after the effective date of this act, while maintaining in status quo the rights of the holders of the bonds issued after March 27, 1962 (the effective date of the 1962 covenant legislation) but prior to the effective date of this act." Id., at 707a.
Earlier in 1972 the New York Legislature had enacted, and the Governor had signed, a bill repealing the 1962 covenant in its entirety. 1972 N.Y.Laws, c. 1003. New Jersey did not adopt the necessary complementary legislation at that time. The 1973 amendment to the New York legislation, noted in the text, was then enacted to conform to the New Jersey statute.
12
Governor Wilson of New York, upon signing that State's repealer, observed:
"It is with great reluctance that I approve a bill that overturns a solemn pledge of the State. I take this extraordinary step only because it will lead to an end of the existing controversy over the validity of the statutory covenant, a controversy that can only have an adverse affect (sic ) upon the administration and financing of the Port Authority, and because it will lead to a speedy resolution by the courts of the questions and issues concerning the validity of the statutory covenant. Because it is the province of the courts to decide questions of constitutionality, I will not prevent the covenant issue from being brought before them, especially where it is the unanimously expressed desire of the members of both houses of the New York State Legislature as well as the expressed will of the Governor and both houses of the Legislature of the State of New Jersey to do so." App. 774a.
13
The Contract Clause is in the phrase of the Constitution which contains the prohibition against any State's enacting a bill of attainder or ex post facto law. Notwithstanding Mr. Chief Justice Marshall's reference to these two other forbidden categories in Fletcher v. Peck, 6 Cranch, at 138-139, it is clear that they limit the powers of the States only with regard to the imposition of punishment. Cummings v. Missouri, 4 Wall. 277, 322-326, 18 L.Ed. 356 (1867); Calder v. Bull, 3 Dall. 386, 390-391, 1 L.Ed. 648 (1798). The Due Process Clause of the Fourteenth Amendment generally does not prohibit retrospective civil legislation, unless the consequences are particularly "harsh and oppressive." Welch v. Henry, 305 U.S. 134, 147, 59 S.Ct. 121, 125, 83 L.Ed. 87 (1938). See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14-20, 96 S.Ct. 2882, 2891-2894, 49 L.Ed.2d 752 (1976).
14
In general, a statute is itself treated as a contract when the language and circumstances evince a legislative intent to create private rights of a contractual nature enforceable against the State. Compare Dodge v. Board of Education, 302 U.S. 74, 78-79, 58 S.Ct. 98, 100, 82 L.Ed. 57 (1937), with Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 104-105, 58 S.Ct. 443, 447-448, 82 L.Ed. 685 (1938). In addition, statutes governing the interpretation and enforcement of contracts may be regarded as forming part of the obligation of contracts made under their aegis. See n. 17, infra. See generally Hale, The Supreme Court and the Contract Clause: II, 57 Harv.L.Rev. 621, 663-670 (1944).
15
Between the enactment of the 1962 covenant and its retrospective repeal in 1974, the Port Authority issued and sold to the public $1,260 million of Consolidated Bonds. The Fortieth and Forty-first Series, for which appellant is trustee, were issued after the 1973 prospective repeal and prior to the retrospective repeal. The holders of those bonds were not parties to the 1962 covenant, since the States undoubtedly had the power to repeal the covenant prospectively. See Ogden v. Saunders, 12 Wheat. 213, 6 L.Ed. 606 (1827). The subsequent bondholders arguably are like third-party beneficiaries of the covenant. There is testimony in the record that they were indirectly protected because the bonds outstanding at the time of the prospective repeal (in excess of $1 billion) could not be expected to be retired in the foreseeable future. App. 1105a. We need not decide whether that indirect relationship supports standing to challenge the retroactive repeal, however. Appellant also sued as a holder of Consolidated Bonds (some $72 million) issued between 1962 and 1973. Id., at 56a-57a.
16
Contract rights are a form of property and as such may be taken for a public purpose provided that just compensation is paid. Contributors to Pennsylvania Hospital v. Philadelphia, 245 U.S. 20, 38 S.Ct. 35, 62 L.Ed. 124 (1917); see El Paso v. Simmons, 379 U.S. 497, 533-534, 85 S.Ct. 577, 597, 13 L.Ed.2d 446 (1965) (Black, J., dissenting).
17
The obligations of a contract long have been regarded as including not only the express terms but also the contemporaneous state law per-
taining to interpretation and enforcement. "This Court has said that 'the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms.' " Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 429-430, 54 S.Ct. 231, 237, 78 L.Ed. 413 (1934), quoting Von Hoffman v. City of Quincy, 4 Wall. 535, 550, 18 L.Ed. 403 (1867). See also Ogden v. Saunders, 12 Wheat., at 259-260, 297-298, 6 L.Ed. 606 (opinions of Washington and Thompson, JJ.). This principle presumes that contracting parties adopt the terms of their bargain in reliance on the law in effect at the time the agreement is reached.
It is not always unconstitutional, however, for changes in statutory remedies to affect pre-existing contracts. During the early years when the Contract Clause was regarded as an absolute bar to any impairment, this result was reached by treating remedies in a manner distinct from substantive contract obligations. Thus, for example, a State could abolish imprisonment for debt because elimination of this remedy did not impair the underlying obligation. Penniman's Case, 103 U.S. 714, 26 L.Ed. 602 (1881); Mason v. Haile, 12 Wheat. 370, 6 L.Ed. 660 (1827); see Sturges v. Crowninshield, 4 Wheat. 122, 200-201, 4 L.Ed. 529 (1819).
Yet it was also recognized very early that the distinction between remedies and obligations was not absolute. Impairment of a remedy was held to be unconstitutional if it effectively reduced the value of substantive contract rights. Green v. Biddle, 8 Wheat. 1, 75-76, 84-85, 5 L.Ed. 547 (1823). See also Bronson v. Kinzie, 1 How. 311, 315-318, 11 L.Ed. 143 (1843); Von Hoffman v. City of Quincy, 4 Wall., at 552-554, 18 L.Ed. 403. More recent decisions have not relied on the remedy/obligation distinction, primarily because it is now recognized that obligations as well as remedies may be modified without necessarily violating the Contract Clause. El Paso v. Simmons, 379 U.S., at 506-507, and n. 9, 85 S.Ct., at 582-83; Home Building & Loan Assn. v. Blaisdell, 290 U.S., at 429-435, 54 S.Ct. at 236-39.
Although now largely an outdated formalism, the remedy/obligation distinction may be viewed as approximating the result of a more particularized inquiry into the legitimate expectations of the contracting parties. The parties may rely on the continued existence of adequate statutory remedies for enforcing their agreement, but they are unlikely to expect that state law will remain entirely static. Thus, a reasonable modification of statutes governing contract remedies is much less likely to upset expectations than a law adjusting the express terms of an agreement. In this respect, the repeal of the 1962 covenant is to be seen as a serious disruption of the bondholders' expectations.
18
Accord: Stephenson v. Binford, 287 U.S. 251, 276, 53 S.Ct. 181, 188, 77 L.Ed. 288 (1932); Manigault v. Springs, 199 U.S. 473, 480, 26 S.Ct. 127, 130, 50 L.Ed. 274 (1905). See Home Building & Loan Assn. v. Blaisdell, 290 U.S., at 437-438, 54 S.Ct. at 239-40.
19
Blaisdell suggested further limitations that have since been subsumed in the overall determination of reasonableness. The legislation sustained in Blaisdell was adopted pursuant to a declared emergency in the State and strictly limited in duration. Subsequent decisions struck down state laws that were not so limited. W. B. Worthen Co. v. Thomas, 292 U.S. 426, 432-434, 54 S.Ct. 816, 818-819, 78 L.Ed. 1344 (1934) (relief not limited as to "time, amount, circumstances, or need"); Treigle v. Acme Homestead Assn., 297 U.S. 189, 195, 56 S.Ct. 408, 410, 80 L.Ed. 575 (1936) (no emergency or temporary measure). Later decisions abandoned these limitations as absolute requirements. Veix v. Sixth Ward Building & Loan Assn., 310 U.S. 32, 39-40, 60 S.Ct. 792, 795, 84 L.Ed. 1061 (1940) (emergency need not be declared and relief measure need not be temporary); East New York Savings Bank v. Hahn, 326 U.S. 230, 66 S.Ct. 69, 90 L.Ed. 34 (1945) (approving 10th extension of one-year mortgage moratorium). Undoubtedly the existence of an emergency and the limited duration of a relief measure are factors to be assessed in determining the reasonableness of an impairment, but they cannot be regarded as essential in every case.
20
Stone v. Mississippi sustained the State's revocation of a 25-year charter to operate a lottery. Other cases similarly have held that a State is without power to enter into binding contracts not to exercise its police power in the future. E. g., Pierce Oil Corp. v. City of Hope, 248 U.S. 498, 501, 39 S.Ct. 172, 173, 63 L.Ed. 381 (1919); Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548, 558, 34 S.Ct. 364, 367, 58 L.Ed. 721 (1914); Douglas v. Kentucky, 168 U.S. 488, 502-505, 18 S.Ct. 199, 204-05, 42 L.Ed. 553 (1897). See Home Building & Loan Assn. v. Blaisdell, 290 U.S., at 436-437, 54 S.Ct., at 239.
21
In New Jersey v. Wilson, 7 Cranch 164, 3 L.Ed. 303 (1812), the Court held that a State could properly grant a permanent tax exemption and that the Contract Clause prohibited any impairment of such an agreement. This holding has never been repudiated, although tax exemption contracts generally have not received a sympathetic construction. See B. Wright, The Contract Clause of the Constitution 179-194 (1938).
By contrast, the doctrine that a State cannot contract away the power of eminent domain has been established since West River Bridge Co. v. Dix, 6 How. 507, 12 L.Ed. 535 (1848). See Contributors to Pennsylvania Hospital v. Philadelphia, 245 U. S., at 23-24, 38 S.Ct., at 35-36. The doctrine that a State cannot be bound to a contract forbidding the exercise of its police power is almost as old. See n. 20, supra.
22
State laws authorizing the impairment of municipal bond contracts have been held unconstitutional. W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed. 1298 (1935); Louisiana v. Pilsbury, 105 U.S. 278, 26 L.Ed. 1090 (1882). Similarly, a tax on municipal bonds was held unconstitutional because its effect was to reduce the contractual rate of interest. Murray v. Charleston, 96 U.S. 432, 443-446, 24 L.Ed. 760 (1878).
A number of cases have held that a State may not authorize a municipality to borrow money and then restrict its taxing power so that the debt cannot be repaid. Louisiana ex rel. Hubert v. New Orleans, 215 U.S. 170, 175-178, 30 S.Ct. 40, 42-43, 54 L.Ed. 144 (1909); Wolff v. New Orleans, 103 U.S. 358, 365-368, 26 L.Ed. 395 (1881); Von Hoffman v. City of Quincy, 4 Wall., at 554-555, 18 L.Ed. 403. See Fisk v. Jefferson Police Jury, 116 U.S. 131, 6 S.Ct. 329, 29 L.Ed. 587 (1885) (contract for payment of public officer).
See also Wood v. Lovett, 313 U.S. 362, 61 S.Ct. 983, 85 L.Ed. 1404 (1941); Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685 (1938).
23
"The truth is, States and cities, when they borrow money and contract to repay it with interest, are not acting as sovereignties. They come down to the level of ordinary individuals. Their contracts have the same meaning as that of similar contracts between private persons. Hence, instead of there being in the undertaking of a State or city to pay, a reservation of a sovereign right to withhold payment, the contract should be regarded as an assurance that such a right will not be exercised. A promise to pay, with a reserved right to deny or change the effect of the promise, is an absurdity." Murray v. Charleston, 96 U.S., at 445, 24 L.Ed. 760.
24
See El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965); Faitoute Iron & Steel Co. v. City of Asbury Park, 316 U.S. 502, 62 S.Ct. 1129, 86 L.Ed. 1629 (1942); Louisiana v. New Orleans, 102 U.S. 203, 26 L.Ed. 132 (1880).
25
For similar reasons, a dual standard of review was applied under the Fifth Amendment to federal legislation abrogating contractual gold clauses. "There is a clear distinction between the power of the Congress to control or interdict the contracts of private parties when they interfere with the exercise of its constitutional authority, and the power of the Congress to alter or repudiate the substance of its own engagements when it has borrowed money under the authority which the Constitution confers." Perry v. United States, 294 U.S. 330, 350-351, 55 S.Ct. 432, 435, 79 L.Ed. 912 (1935). Cf. Norman v. Baltimore & O. R. Co., 294 U.S. 240, 304-305, 55 S.Ct. 407, 414, 79 L.Ed. 885 (1935). See also Lynch v. United States, 292 U.S. 571, 580, 54 S.Ct. 840, 844, 78 L.Ed. 1434 (1934) (need for money is no excuse for repudiating contractual obligations); Note, The Constitutionality of the New York Municipal Wage Freeze and Debt Moratorium: Resurrection of the Contract Clause, 125 U.Pa.L.Rev. 167, 188-191 (1976).
26
In Kavanaugh, the State changed its statutory procedure for enforcing certain municipal assessments against property owners. The holders of bonds for which the assessments were pledged as security were found to have contract rights in the previous statutory scheme. Without classifying the enforcement statutes as substantive or remedial, the Court held the change unconstitutional because it "(took) from the mortgage the quality of an acceptable investment for a rational investor." 295 U.S., at 60, 55 S.Ct., at 557. In the instant case the State has repudiated an express promise rather than one implied from the statutory scheme in effect at the time of the contract. Thus, the instant case may be regarded as a more serious abrogation of the bondholders' expectations than occurred in Kavanaugh. See n. 17, supra.
27
The dissent suggests, post, at 41-44, that such careful scrutiny is unwarranted in this case because the harm to bondholders is relatively small. For the same reason, however, contractual obligations of this magnitude need not impose barriers to changes in public policy. The States remain free to exercise their powers of eminent domain to abrogate such contractual rights, upon payment of just compensation. See n. 16, supra.
28
If in fact the States sought to divert only new revenues to subsidize mass transit, then the covenant could have been amended to exclude the additional bridge and tunnel tolls from the revenue use limitation that was imposed. Such a change would not have reduced the covenant to a nullity because it would have continued to prevent the diminution of revenues and reserves that historically secured the bonds. And even if the plan contemplated use of current revenues and reserves, the formula for computing "permitted deficits" perhaps could have been modified without totally abandoning an objective limitation on the Port Authority's involvement in deficit mass transit. Finally, the procedures for obtaining bondholder approval could have been modified so that such consent would present a feasible means of undertaking new projects. See n. 10, supra.
Of course, we express no opinion as to whether any of these lesser impairments would be constitutional.
29
Transportation control strategies are available that do not require direct application of revenues from bridge and tunnel tolls to subsidize mass transit. In calling for air pollution abatement measures in New Jersey, the Administrator of the Environmental Protection Agency encouraged "close examination" of such measures as, inter alia, "State taxes to encourage VMT (vehicle miles traveled) reductions while raising revenues to benefit mass transit" and realignment of toll structures by "elimination of commuter discounts" and "possibly an increase in tolls during peak commuting times to encourage carpools." 38 Fed.Reg. 31389 (1973). Thus, the States could discourage automobile use through taxes on gasoline or parking, for example, and use the revenues to subsidize mass transit projects so they would be "self-supporting" within the meaning of the covenant. Bridge and tunnel tolls could be increased for commuters and decreased at other times, so that there would be no excess revenue for purposes of the General Bridge Act of 1946, 33 U.S.C. § 526.
30
This Court previously has regarded the elimination of unforeseen windfall benefits as a reasonable basis for sustaining changes in statutory deficiency judgment procedures. These changes were adopted by several States when unexpected reductions in property values during the Depression permitted some mortgagees to recover far more than their legitimate entitlement. See Gelfert v. National City Bank, 313 U.S. 221, 233-235, 61 S.Ct. 898, 899, 85 L.Ed. 1299 (1941); Honeyman v. Jacobs, 306 U.S. 539, 542-543, 59 S.Ct. 702, 703-04, 83 L.Ed. 972 (1939); Richmond Mortgage & Loan Corp. v. Wachovia Bank & Trust Co., 300 U.S. 124, 130-131, 57 S.Ct. 338, 340, 81 L.Ed. 552 (1937).
1
The covenant does enable the Authority to finance passenger railroad facilities to a level of "permitted deficits," defined as one-tenth of the General Reserve Fund or 1% of the total bonded indebtedness. While the Court notes in passing that this provision "permitted, and perhaps even contemplated, additional Port Authority involvement in deficit rail mass transit," ante, at 11, the formula restricts the Authority to a small percentage of the fund, even though aggregate reserves and revenues may far exceed expenses and creditor claims. In any event, the parties have stipulated that as a practical matter the Authority has been unable to expand its involvement in rapid transit by reliance on this alternative formula. App. 692a.
2
The 1962 covenant does not merely bind the Authority's hands for the decades of the 1960's and 1970's. Rather, the covenant will preclude the deployment of the Authority's toll revenues to public transit needs until all the bonds previously issued under the covenant have been retired. Appellant trust company advises that the covenant thus continues "as a practical matter until the year 2007." Brief for Appellant 24, even if now repealed prospectively as suggested ante, at 18 n. 15.
3
See, e. g., infra, at 59, and n. 17.
4
See ante, at 30 n. 28. I am puzzled whether the Court really intends these alternatives to be taken seriously in view of the footnote's closing reminder that even these "lesser impairments" also may be found to be unconstitutional. If the Court, in fact, means that New Jersey and New York could remedy any Contract Clause defects merely by modifying their repeal of the 1962 covenant so as to limit transit subsidization solely to future toll increases the policy that is being followed by the States in actual practice then today's decision would be rendered into a temporary formalism.
5
Cf. Friends of the Earth v. Carey, 552 F.2d 25 (CA2 1977); Friends of the Earth v. Carey, 535 F.2d 165 (CA2 1976); Friends of the Earth v. EPA, 499 F.2d 1118 (CA2 1974).
6
Because cars entering or leaving Manhattan must pass over bridges or through tunnels, the regulation of tolls offers an unusually convenient and effective method of discouraging automobile usage in addition to promising a highly lucrative revenue base.
7
Thus, if toll funds cannot be diverted to rapid transit needs any increase in bridge revenues necessarily would produce an expansion of the Authority's general reserve fund well beyond that necessary or contemplated for the protection of bondholders. Faced with such a mere accumulation of capital, the Federal Highway Administrator, acting under § 503 of the General Bridge Act of 1946, 33 U.S.C. § 526, evidently would be obligated to disallow any toll increases as not "reasonable and just" under the Act. See generally Delaware River Port Authority v. Tiemann, 531 F.2d 699 (CA3 1976). The United States Department of Transportation, however, has stated that "in some areas (New York, Philadelphia, San Francisco), bridge toll revenues provide significant support for transit capital and/or operating costs, thereby providing transit service improvements which promote decreased dependence on automobile travel." App. 726a-727a. The Department has recommended that a diversion of funds to serve rapid transit needs should qualify as "reasonable and just," and, therefore, would be capable of supporting a general increase in toll revenues. Ibid. This is in stark contrast with the Court's suggested alternative policies outlined ante, at 30, n. 29, which would permit no general increase in bridge tolls and no coordination of the bridge toll and transit subsidization strategies that are central to the antipollution effort in metropolitan New York, and, therefore, until today, have been considered secondary and inadequate to serve the community's needs.
8
See, e. g., n. 7, supra. In short, all the alternatives that the Court leaves to the States, ante, at 30, n. 29, deny access to the Authority's tolls, even though they represent a potentially lucrative revenue source which can be tapped without injury to the bondholders. See Part B, infra.
9
Indeed, the Court's single-minded emphasis on the existence of changed circumstances leads it to embrace a rather perverse constellation of values in which New Jersey's desire to care for the health, environmental, and energy needs of its citizenry is relegated to lesser importance than the desire of Texas in El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965), to deny windfall economic gains to purchasers of school land from the State. Ante, at 31. I, of course, do not dispute the importance of Texas' stake in Simmons. But surely any reasonable ordering of values and social objectives would compel the conclusion that a State's concern for its citizens' health and general welfare is far more deserving of this Court's recognition.
10
The court found: "Between 1961 and 1973 the net revenues of the Authority increased from $68,000,000 to $137,000,000, and over that period the Authority had available to it $582,732,000 in excess of its debt service requirements . . . . Through 1974, the corresponding figures are $161,283,000 and $649,750,000, respectively." 134 N.J.Super., at 195 n. 43, 338 A.2d, at 873 n. 43. Thus, both prior to and following the repeal of the covenant, the Authority's revenues and earned surplus continued their unhampered and overwhelmingly impressive growth.
11
Indeed, one of the anomalous aspects of this suit is the Court's willingness to invalidate an Act of the State of New Jersey, and indirectly of New York, while apparently recognizing that if this were an action by creditors for damages, or an action to fix "just compensation," the trial court's findings raise serious doubt that any compensable monetary loss would be found. Ante, at 19. By sidestepping the damages question, ibid., and by mandating reinstatement of the covenant, the Court manages to burden the Port Authority with an unwanted contract, while relieving the creditor-appellant of the need to establish any tangible economic injury arising from the covenant's repeal. This suggests that any protection afforded bondholders today may well prove to be purely illusory. Even after the mandate issues, New Jersey, we are told, may again condemn or repeal the covenant and offer just compensation to its creditors. See ante, at 29 n. 27. However, in light of the trial court's factual conclusions, this promise of compensation will entitle bondholders to little or no financial recovery.
12
The fundamental soundness of the Authority's bonds is reflected in the ratings received from the principal financial surveys, Moody's and Standard & Poor's, following repeal of the covenant. The trial court found: "The bonds carried the same ("A") rating prior to the enactment of the covenant, after it was enacted, after it was prospectively repealed, and after the (retroactive) repeal act of 1974." 134 N.J.Super., at 179, 338 A.2d, at 864.
13
One scholar for example, after undertaking extensive research into the history of the Constitutional Convention, concluded that there is no evidence that the Constitution's Framers perceived of the Contract Clause as applicable to public agreements. "(I)t is evident that all of them discussed the clause only in relation to private contracts, i. e., contracts between individuals." B. Wright, The Contract Clause of the Constitution 15 (1938). Moreover, "(a) careful search has failed to unearth any other statements even suggesting that the contract clause was intended to apply to other than private contracts." Id., at 16. Indeed, Professor Wright found that only two anti-federalists, neither of whom was a member of the Convention, ever suggested that the Clause would support "a broader meaning" encompassing public contracts, but "their interpretations were denied by members of the Convention, and the denials were not challenged." Ibid.
14
Parallel doctrines worked to the same end of freeing the States from contractual duties allegedly imposed by earlier legislators. For example, it has long been held that in applying the Contract Clause to government contracts, every ambiguity and gap is to be strictly construed in behalf of the State. "(I)n grants by the public, nothing passes by implication." Charles River Bridge v. Warren Bridge, 11 Pet. 420, 546, 9 L.Ed. 773 (1837). "Every reasonable doubt is to be resolved adversely (to the private party claiming under the contract). Nothing is to be taken as conceded but what is given in unmistakable terms, or by an implication equally clear. The affirmative must be shown. Silence is negation, and doubt is fatal to the claim. This doctrine is vital to the public welfare." Fertilizing Co. v. Hyde Park, 97 U.S. 659, 666, 24 L.Ed. 1036 (1878).
Along these lines, it is noteworthy that the state law of New Jersey itself raises serious doubts concerning the reasonableness of appellant's
reliance on the covenant for permanent protection from later laws enacted by the state legislature. In a case involving an alleged impairment of a township's municipal bonds, Hourigan v. North Bergen Township, 113 N.J.L. 143, 149, 172 A. 193, 196 (1934), the State's highest court declared: "It is a well established doctrine that the interdiction of statutes impairing the obligation of contracts does not prevent the state from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals. While this power is subject to limitations in certain cases, there is wide discretion on the part of the legislature in determining what is and what is not necessary a discretion which courts ordinarily will not interfere with." In my view, therefore, appellant should be held to have purchased the Authority's bonds subject to the knowledge that under New Jersey law the State's obligation was conditionally undertaken subject to reasonable future legislative action.
The record raises similar doubts and ambiguities. Thus, State Senator Farley, who chaired the committee that inquired into the status of the Authority's bonds prior to enactment of the covenant, noted: "(W)e well appreciate that . . . we could not impair any obligation such as contracts of bond issues. Likewise, you (Commissioner Clancy of the Port Authority) as a lawyer know that one legislature cannot bind the other involving policy five, ten, or twenty years hence." App. 89a (emphasis supplied). It may well be that appellant subjectively believed that the covenant was unimpeachable under state law. But given the doubts and hesitancies contained in the record, the principles established in earlier cases extending back to John Marshall should require that such "doubt is fatal to (appellant's) claim." Fertilizing Co., supra, at 666.
15
Among other difficulties, the question-begging attempt to categorize inviolable legislative powers, vis-a-vis the Contract Clause depends upon a conception of state sovereignty that is both simplistic and unpersuasive. We are told that the Contract Clause "does not require a State to adhere to a contract that surrenders an essential attribute of its sovereignty," ante, at 23, but in applying this principle, the Court finds that the States' "taxing and spending powers," unlike the power of eminent domain, lie outside this rule, ante, at 24. Before today, one might well have supposed that the States' authority to tax, spend money, and generally make basic financial decisions is among the most important of their governmental powers. Indeed, only last Term, this Court announced that a State's decision to pay its employees less than the minimum wage a decision of far less importance to the citizens generally than efforts to derive funding for improving the facilities that directly and vitally affect their health and safety is immune from federal regulation under the Commerce Clause, an authority previously thought to be virtually plenary in nature. The Court there reasoned that the minimum-wage decision falls within the sovereign powers of "States qua States." National League of Cities v. Usery, 426 U.S. 833, 847, 96 S.Ct. 2465, 2472, 49 L.Ed.2d 245 (1976). One may rightfully feel unease that the Court is in the process of developing a concept of state sovereignty that is marked neither by consistency nor intuitive appeal.
In any event, in addition to resting on a most dubious conception of sovereignty, the Court's effort to demonstrate that the States are free to contract away their taxing and spending powers and hence free "to enter into effective financial contracts" notwithstanding later exercises of the police power must fail because it is untenable. While it is true that New Jersey v. Wilson, 7 Cranch 164, 3 L.Ed. 303 (1812) (Contract Clause precludes a legislature from repudiating a grant of tax exemption) has never explicitly been overruled, subsequent cases have almost uniformly avoided adherence to either its reasoning or holding. See, e. g., New York ex rel. Clyde v. Gilchrist, 262 U.S. 94, 43 S.Ct. 501, 67 L.Ed. 883 (1923); Seton Hall College v. South Orange, 242 U.S. 100, 37 S.Ct. 54, 61 L.Ed. 170 (1916); Rochester R. Co. v. Rochester, 205 U.S. 236, 27 S.Ct. 469, 51 L.Ed. 784 (1907); Wisconsin & M. R. Co. v. Powers, 191 U.S. 379, 24 S.Ct. 107, 48 L.Ed. 229 (1903); Morgan v. Louisiana, 93 U.S. 217, 23 L.Ed. 860 (1876). These cases appreciate, as today's decision does not, that the operative consideration for constitutional purposes is not whether a contract can or cannot be branded as "financial." Rather, in adjudging the constitutionality of "an exercise of the sovereign authority of the State," Seton Hall College, supra, 242 U.S., at 106, 37 S.Ct., at 56 be it financial or otherwise the Contract Clause tolerates reasonable legislative Acts in the service of the broader interests of the society generally.
16
The Court makes clear that it contemplates stricter judicial review under the Contract Clause when the government's own obligations are in issue, but points to no case in support of this multiheaded view of the scope of the Clause. See ante, at 25-26. As noted previously, see n. 13, supra this position finds no support in the historical rationale for inclusion of the Contract Clause in the Constitution. And it is clear that the Court's citation to Perry v. United States, 294 U.S. 330, 55 S.Ct. 432, 79 L.Ed. 912 (1935), see ante, at 26 n.25, offers no support for its rewriting of history. In that case, one of the Gold Clause Cases, Perry challenged the constitution-
ality of a congressional enactment which authorized the redemption of outstanding United States gold bonds by payment of legal tender currency rather than " 'by the payment of 10,000 gold dollars each containing 25.8 grains of gold, .9 fine,' " 294 U.S., at 347, 55 S.Ct., at 433, the value of the dollar in gold when the bonds were acquired. Perry complained that inflation had devalued the worth of legal tender with respect to gold and, therefore, claimed financial injury by the conversion. The Government defended its actions on the ground that the gold clause obstructed Congress' express power to "regulate the Value" of money, Art. I, § 8, and, accordingly, argued that Congress was free to repudiate the gold standard under that power. Although Perry ultimately was denied recovery, the Court found that the authority to "regulate the Value" of money, while permitting Congress "to control or interdict the contracts of private parties" with regard to the legal exchange rate, 294 U.S., at 350, 55 S.Ct. at 435, did not include the power to repudiate the Government's own obligations, which were governed by entirely different constitutional provisions: E. g., Congress may "borrow Money on the credit of the United States," Art. I, § 8, cl. 2, and "The validity of the public debt of the United States . . . shall not be questioned," Amdt. 14, § 4. Thus the differential standard in Perry emerged from the collision of competing grants of power to the Federal Government, and did not purport to suggest that the Contract Clause or its federal counterpart, the Fifth Amendment standing alone would produce different standards for reviewing governmental interference with public and private contractual obligations.
17
The Court's newly announced standard of review, like all such formulations, can merely hope to suggest the direction that a court's inquiry should take, and the relative weight to be afforded a constitutional right. But particular words like "reasonable" and "necessary" also are fused with special meaning, for judges have long experience in applying such standards to constitutional contexts. Reasonableness generally has signified the most relaxed regime of judicial inquiry. See, e. g., Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) ("If the classification has some 'reasonable basis,' it does not offend the Constitution"). Contrariwise, the element of necessity traditionally has played a key role in the most penetrating mode of constitutional review. See e. g., Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969) (a classification which burdens
a fundamental constitutional right must be "necessary to promote a compelling governmental interest"). The Court's new test, therefore, represents a most unusual hybrid which manages to merge the two polar extremes of judicial intervention, see generally Gunther, Foreword: In Search of Evolving Doctrine on A Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972), into one synthesis. Plainly, courts are apt to face considerable confusion in wielding such a schizophrenic new instrument. And well they might, for until today one would have fairly thought that as a matter of common sense as well as doctrine, state policies that are "necessary to serve an important public purpose," ante, at 25, a fortiori would be "reasonable."
The Court, however, seems to discover new meanings in these terms. "Necessary" appears to comport with some notion of a less restrictive alternative. As applied by the Court in this instance, however, the less restrictive alternative bears no relationship to previous uses of that analytical tool when economic and social matters were involved. Thus, the Court does not actually inquire whether "the government can achieve the purposes of the challenged regulation equally effectively by one or more narrower regulations." Struve, The Less-Restrictive-Alternative Principle and Economic Due Process, 80 Harv.L.Rev. 1463 (1967). Rather, the Court concludes that an impairment of contract was not "necessary" because the Court apparently is able to hypothesize other means of achieving some or all of the State's objectives, even though those alternatives have long been deemed as secondary in importance, nn. 7, 8, supra, or arguably are unconstitutional, ante, at 30 n.28. Under this approach, few, if any, Contract Clause cases in history that have deferred to state policymaking have been correctly decided. See infra, at 59.
The "reasonableness" test does no better. No longer does it mean that this Court will defer to the "reasonable judgments" of the authorized policymakers. Knebel v. Hein, 429 U.S. 288, 297, 97 S.Ct. 549, 555, 50 L.Ed.2d 485 (1977). Instead, the Court appears to ask whether changed circumstances took the state legislature by surprise, ante, at 31-32. Again, I find no basis in this Court's prior cases for adopting such a constrictive view of that constitutional test. See infra, at 59-60.
18
And, of course, there is every reason to expect that appellant, with combined trust and fiduciary holdings of Authority bonds amounting to some $300 million, is not powerless in protecting its interests either before the state legislature or in the economic marketplace. Indeed, a myriad of sophisticated investors, investment banks, and market analysts regularly oversee the operation of the bond market and the affairs of municipalities which appear in search of credit. Accordingly, any city or State that enters the marketplace is well aware that, should it treat its creditors abusively, the market is apt to exact "justice" that is quicker and surer than anything that this Court can hope to offer. In brief, appellant is the paradigm of a litigant who is neither "discrete" nor "insular" in appealing for this Court's time or protection.
| 78
|
431 U.S. 63
97 S.Ct. 1621
52 L.Ed.2d 136
Stanley BLACKLEDGE, Warden, et al., Petitioners,v.Gary Darrell ALLISON.
No. 75-1693.
Argued Feb. 22, 1977.
Decided May 2, 1977.
Syllabus
At the arraignment of respondent, who had been indicted in North Carolina for various state criminal offenses, he entered a guilty plea to a single count of attempted safe robbery. In response to two of various form questions that under then-applicable procedures were put by the trial judge to those entering guilty pleas, respondent acknowledged that he understood that he could be imprisoned for a minimum of 10 years to a maximum of life and that no one had made promises or threats to influence him to plead guilty. Without further questioning, the judge accepted the plea on an "Adjudication" form, which, inter alia, recited that respondent had pleaded guilty to attempted safe robbery "freely, understandingly and voluntarily," with full awareness of the consequences, and "without undue . . . compulsion . . . duress, (or) promise of leniency." At a sentencing hearing three days later respondent was sentenced to 17-21 years. After unsuccessfully exhausting a state collateral remedy, respondent sought a writ of habeas corpus in a Federal District Court, claiming that his guilty plea had been induced by the promise of his attorney, who presumably had consulted with the judge and Solicitor, that he would get only a 10-year sentence. He also stated that he was aware that he had been questioned by the judge before sentencing but thought that he was going to get only 10 years and had been instructed to answer the questions so that the court would accept the guilty plea. The District Court granted a motion to dismiss the petition, on the ground that the form conclusively showed that respondent had chosen to plead guilty knowingly, voluntarily, and with full awareness of the consequences. The Court of Appeals reversed, holding that respondent's allegation of a broken promise, as amplified by the explanation that his lawyer instructed him to deny the existence of any promises, was not foreclosed by his responses to the form questions and that he was entitled to an evidentiary hearing, at least in the absence of counter-affidavits conclusively proving the falsity of respondent's allegations. Held: In light of the nature of the record of the proceeding at which the guilty plea was accepted, and of the ambiguous status of the process of plea bargaining at the time the guilty plea was made, respondent's petition for a writ of habeas corpus should not have been summarily dismissed. Pp. 71-83.
(a) Although the plea or sentencing proceeding record constitutes a formidable barrier to a collateral attack on a guilty plea, that barrier is not insurmountable, and in administering the writ of habeas corpus federal courts cannot fairly adopt a per se rule excluding all possibility that a defendant's representations at the time of his guilty plea were so much the product of such factors as misunderstanding, duress, or misrepresentation as to make that plea a constitutionally inadequate basis for imprisonment. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169. Pp. 71-75.
(b) Respondent's allegations were not so vague or conclusory as to warrant dismissal for that reason alone. He elaborated on his claim with specific factual allegations, indicating exactly what the terms of the promise were; when, where, and by whom it had been made; and the identity of a witness to its communication. Pp. 75-76.
(c) The North Carolina plea-bargaining procedure that was in effect at the time of respondent's arraignment reflected the atmosphere of secrecy that then characterized plea bargaining, whose legitimacy was not finally established until Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 which was decided not long before respondent's arraignment. There was no transcript of the proceeding but only a standard printed form, and there is no way of knowing if the trial judge deviated from the form or whether any statements were made regarding promised sentencing concessions; nor is there any record of the sentencing hearing. The form questions did nothing to dispel a defendant's belief that any plea bargain had to be concealed. Particularly, if, as respondent alleged, he was advised by counsel to conceal any plea bargain, his denial that promises had been made have been mere courtroom ritual. Pp. 76-78.
(d) Though through such procedures as summary judgment, discovery, or expansion of the record, it may develop that a full evidentiary hearing is not required, respondent is "entitled to careful consideration and plenary processing of (his claim,) including full opportunity for presentation of the relevant facts." Harris v. Nelson, 394 U.S. 286, 298, 89 S.Ct. 1082, 1090, 22 L.Ed.2d 281. Pp. 80-82.
4 Cir., 533 F.2d 894, affirmed.
Richard N. League, Raleigh, N. C., for petitioners.
C. Frank Goldsmith, Jr., Marion, N. C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondent, Gary Darrell Allison, an inmate of a North Carolina penitentiary, petitioned a Federal District Court for a writ of habeas corpus. The court dismissed his petition without a hearing, and the Court of Appeals reversed, ruling that in the circumstances of this case summary dismissal was improper. We granted certiorari to review the judgment of the Court of Appeals.
2
* Allison was indicted by a North Carolina grand jury for breaking and entering, attempted safe robbery, and possession of burglary tools. At his arraignment, where he was represented by court-appointed counsel, he initially pleaded not guilty. But after learning that his codefendant planned to plead guilty, he entered a guilty plea to a single count of attempted safe robbery, for which the minimum prison sentence was 10 years and the maximum was life. N.C.Gen.Stat. § 14-89.1 (1969).
3
In accord with the procedure for taking guilty pleas then in effect in North Carolina, the judge in open court read from a printed form 13 questions, generally concerning the defendant's understanding of the charge, its consequences, and the voluntariness of his plea. Allison answered "yes" or "no" to each question, and the court clerk transcribed those responses on a copy of the form, which Allison signed. So far as the record shows, there was no questioning beyond this routine; no inquiry was made of either defense counsel or prosecutor. Two questions from the form are of particular relevance to the issues before us: Question No. 8 "Do you understand that upon your plea of guilty you could be imprisoned for as much as minimum (sic ) of 10 years to life?" to which Allison answered "Yes"; and Question No. 11 "Has the Solicitor, or your lawyer, or any policeman, law officer or anyone else made any promises or threat to you to influence you to plead guilty in this case?" to which Allison answered "No."
4
The trial judge then accepted the plea by signing his name at the bottom of the form under a text entitled "Adjudication," which recited the three charges for which Allison had been indicted, that he had been fully advised of his rights, was in fact guilty, and pleaded guilty to attempted safe robbery "freely, understandingly and voluntarily," with full awareness of the consequences, and "without undue . . . compulsion . . . duress, (or) promise of leniency."1 Three days later, at a sentencing hearing, of which there is no record whatsoever, Allison was sentenced to 17-21 years in prison.
5
After unsuccessfully exhausting a state collateral remedy, Allison filed a pro se petition in a Federal District Court seeking a writ of habeas corpus. The petition alleged:
6
"(H)is guilty plea was induced by an unkept promise, and therefore was not the free and willing choice of the petitioner, and should be set aside by this Court. An unkept bargain which has induced a guilty plea is grounds for relief. Santobello v. New York, 404 U.S. 257, 267 (, 92 S.Ct. 495, 501, 30 L.Ed.2d 427) (1971)." Pet. for Cert. 14.
7
The petition went on to explain and support this allegation as follows:
8
"The petitioner was led to believe and did believe, by Mr. Pickard (Allison's attorney), that he Mr. N. Glenn Pickard had talked the case over with the Solicitor and the Judge, and that if the petitioner would plea(d) guilty, that he would only get a 10 year sentence of penal servitude. This conversation, where the petitioner was assured that if he plea(ded) guilty, he would only get ten years was witnessed by another party other than the petitioner and counsel.
9
"The petitioner believing that he was only going to get a ten year active sentence, allowed himself to be pled guilty to the charge of attempted safe robbery, and was shocked by the Court with a 17-21 year sentence.
10
"The petitioner was promised by his Attorney, who had consulted presumably with the Judge and Solicitor, that he was only going to get a ten year sentence, and therefore because of this unkept bargain, he is entitled to relief in this Court.
11
"The petitioner is aware of the fact that he was questioned by the trial Judge prior to sentencing, but as he thought he was only going to get ten years, and had been instructed to answer the questions, so that the Court would accept the guilty plea, this fact does not preclude him from raising this matter especially since he was not given the promised sentence by the Court.
12
". . . The fact that the Judge, said that he could get more, did not affect, the belief of the petitioner, that he was only going to get a ten year sentence."
13
The petitioner here, Warden Blackledge, filed a motion to dismiss and attached to it the "transcript" of the plea hearing, consisting of nothing more than the printed form filled in by the clerk and signed by Allison and the state-court judge. The motion contended that the form conclusively showed that Allison had chosen to plead guilty knowingly, voluntarily, and with full awareness of the consequences. The Federal District Court agreed that the printed form "conclusively shows that (Allison) was carefully examined by the Court before the plea was accepted. Therefore, it must stand." Pet. for Cert. 18. Construing Allison's petition as alleging merely that his lawyer's prediction of the severity of the sentence turned out to be inaccurate, the District Court found no basis for relief and, accordingly, dismissed the petition.
14
One week later Allison filed a petition for rehearing. He contended that his statements during the guilty-plea proceeding in the state court were "evidentiary, but NOT conclusory" (App. 17); that if true the allegations in his petition entitled him to relief; and that he deserved a chance to establish their truth. Apparently impressed by these arguments and recognizing that Allison was alleging more than a mere "prediction" by his lawyer, the District Court referred the rehearing petition to a United States Magistrate, who directed Allison to submit evidence in support of his allegations. After an inconclusive exchange of correspondence, the Magistrate concluded that despite "ample opportunity" Allison had failed to comply with the directive, and recommended that the petition for rehearing be denied. The District Court accepted the Magistrate's recommendation and denied the petition. A motion for reconsideration was also denied.
15
The Court of Appeals for the Fourth Circuit reversed. It held that Allison's allegation of a broken promise, as amplified by the explanation that his lawyer instructed him to deny the existence of any promises, was not foreclosed by his responses to the form questions at the state guilty-plea proceeding. The appellate court reasoned that when a pro se, indigent prisoner makes allegations that, if proved, would entitle him to habeas corpus relief, he should not be required to prove his allegations in advance of an evidentiary hearing, at least in the absence of counter affidavits conclusively proving their falsity. The case was therefore remanded for an evidentiary hearing. 533 F.2d 894.
16
The petitioner warden sought review in this Court, 28 U.S.C. § 1254(1), and we granted certiorari, 429 U.S. 814, 97 S.Ct. 55, 50 L.Ed.2d 74, to consider the significant federal question presented.
II
17
Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned. The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings.2
18
These advantages can be secured, however, only if dispositions by guilty plea are accorded a great measure of finality. To allow indiscriminate hearings in federal postconviction proceedings, whether for federal prisoners under 28 U.S.C. § 2255 or state prisoners under 28 U.S.C. §§ 2241-2254, would eliminate the chief virtues of the plea system speed, economy, and finality. And there is reason for concern about that prospect. More often than not a prisoner has everything to gain and nothing to lose from filing a collateral attack upon his guilty plea. If he succeeds in vacating the judgment of conviction, retrial may be difficult. If he convinces a court that his plea was induced by an advantageous plea agreement that was violated, he may obtain the benefit of its terms. A collateral attack may also be inspired by "a mere desire to be freed temporarily from the confines of the prison." Price v. Johnston, 334 U.S. 266, 284-285, 68 S.Ct. 1049, 1059, 92 L.Ed. 1356; accord, Machibroda v. United States, 368 U.S. 487, 497, 82 S.Ct. 510, 515, 7 L.Ed.2d 473 (Clark, J., dissenting).
19
Yet arrayed against the interest in finality is the very purpose of the writ of habeas corpus to safeguard a person's freedom from detention in violation of constitutional guarantees. Harris v. Nelson, 394 U.S. 286, 290-291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281. "The writ of habeas corpus has played a great role in the history of human freedom. It has been the judicial method of lifting undue restraints upon personal liberty." Price v. Johnston, supra, 334 U.S. 266, at 269, 68 S.Ct. 1049, at 1052, 92 L.Ed. 1356. And a prisoner in custody after pleading guilty, no less than one tried and convicted by a jury, is entitled to avail himself of the writ in challenging the constitutionality of his custody.
20
In Machibroda v. United States, supra, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473, the defendant had pleaded guilty in federal court to bank robbery charges and been sentenced to 40 years in prison. He later filed a § 2255 motion alleging that his plea had been induced by an Assistant United States Attorney's promises that his sentence would not exceed 20 years, that the prosecutor had admonished him not to tell his lawyer about the agreement, and that the trial judge had wholly failed to inquire whether the guilty plea was made voluntarily before accepting it. This Court noted that the allegations, if proved, would entitle the defendant to relief, and that they raised an issue of fact that could not be resolved simply on the basis of an affidavit from the prosecutor denying the allegations. Because those allegations "related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light," 368 U.S., at 494-495, 82 S.Ct., at 514, and were not so "vague (or) conclusory," id., at 495, 82 S.Ct., at 514, as to permit summary disposition, the Court ruled that the defendant was entitled to the opportunity to substantiate them at an evidentiary hearing.
21
The later case of Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 followed the same approach. The defendant there, having waived counsel, had also pleaded guilty to federal bank robbery charges. Before accepting the plea, the District Judge addressed the defendant personally, and the defendant stated in substance "that his plea was given voluntarily and knowingly, that he understood the nature of the charge and the consequences of the plea, and that he was in fact guilty." Id., at 213-214, 93 S.Ct., at 1462. The defendant later filed a § 2255 motion to vacate his sentence on the ground that his plea had been coerced "by a combination of fear, coercive police tactics, and illness, including mental illness." 411 U.S., at 214, 93 S.Ct., at 1462. The motion included supporting factual allegations, as well as hospital records documenting some of the contentions.
22
Although noting that in collaterally attacking a plea of guilty a prisoner "may not ordinarily repudiate" statements made to the sentencing judge when the plea was entered, the Court observed that no procedural device for the taking of guilty pleas is so perfect in design and exercise as to warrant a per se rule rendering it "uniformly invulnerable to subsequent challenge." Id., at 215, 93 S.Ct., at 1462. Because the record of the plea hearing did not, in view of the allegations made, " 'conclusively show that the prisoner (was) entitled to no relief,' " 28 U.S.C. § 2255, the Court ruled that the prisoner should be given an evidentiary hearing.3
23
(1, 2) These cases do not in the least reduce the force of the original plea hearing. For the representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible. Machibroda, supra, 368 U.S. at 495-496, 82 S.Ct., at 514 (§ 2255); Price v. Johnston, supra, at 334 U.S. 266, 286-287, 68 S.Ct. 1049, 1060-1061, 92 L.Ed. 1356 (§ 2243).4
24
(3) What Machibroda and Fontaine indisputably teach, however, is that the barrier of the plea or sentencing proceeding record, although imposing, is not invariably insurmountable.5 In administering the writ of habeas corpus and its § 2255 counterpart, the federal courts cannot fairly adopt a per se rule excluding all possibility that a defendant's representations at the time his guilty plea was accepted were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment.6
III
25
(4-6) The allegations in this case were not in themselves so "vague (or) conclusory," Machibroda, supra, 368 U.S. at 495, 82 S.Ct., at 514, as to warrant dismissal for that reason alone.7 Allison alleged as a ground for relief that his plea was induced by an unkept promise.8 But he did not stop there. He proceeded to elaborate upon this claim with specific factual allegations. The petition indicated exactly what the terms of the promise were; when, where, and by whom the promise had been made; and the identity of one witness to its communication. The critical question is whether these allegations, when viewed against the record of the plea hearing, were so "palpably incredible," ibid., so "patently frivolous or false", Herman v. Claudy, 350 U.S. 116, 119, 76 S.Ct. 223, 225, 100 L.Ed. 126, as to warrant summary dismissal. In the light of the nature of the record of the proceeding at which the guilty plea was accepted, and of the ambiguous status of the process of plea bargaining at the time the guilty plea was made, we conclude that Allison's petition should not have been summarily dismissed.
26
Only recently has plea bargaining become a visible practice accepted as a legitimate component in the administration of criminal justice. For decades it was a sub rosa process shrouded in secrecy and deliberately concealed by participating defendants, defense lawyers, prosecutors, and even judges.9 Indeed, it was not until our decision in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, that lingering doubts about the legitimacy of the practice were finally dispelled.10
27
Allison was arraigned a mere 37 days after the Santobello decision was announced, under a North Carolina procedure that had not been modified in light of Santobello or earlier decisions of this Court11 recognizing the process of plea bargaining.12 That procedure itself reflected the atmosphere of secrecy which then characterized plea bargaining generally. No transcript of the proceeding was made. The only record was a standard printed form. There is no way of knowing whether the trial judge in any way deviated from or supplemented the text of the form. The record is silent as to what statements Allison, his lawyer, or the prosecutor might have made regarding promised sentencing concessions. And there is no record at all of the sentencing hearing three days later, at which one of the participants might well have made a statement shedding light upon the veracity of the allegations Allison later advanced.
28
The litany of form questions followed by the trial judge at arraignment nowhere indicated to Allison (or indeed to the lawyers involved) that plea bargaining was a legitimate practice that could be freely disclosed in open court. Neither lawyer was asked to disclose any agreement that had been reached, or sentencing recommendation that had been promised. The process thus did nothing to dispel a defendant's relief that any bargain struck must remain concealed a belief here allegedly reinforced by the admonition of Allison's lawyer himself that disclosure could jeopardize the agreement. Rather than challenging respondent's counsel's contention at oral argument in this Court that "at that time in North Carolina plea bargains were never disclosed in response to such a question on such a form," Tr. of Oral Arg. 25, counsel for the petitioners conceded at oral argument that "(t)hat form was a minimum inquiry." Id., at 49.
29
(7) Although "(l)ogically the general inquiry should elicit information about plea bargaining, . . . it seldom has in the past." Advisory Committee Notes to 1974 Amendment of Fed.Rule Crim.Proc. 11, 18 U.S.C.App., p. 1304 (1970 ed., Supp. V).13 Particularly if, as Allison alleged, he was advised by counsel to conceal any plea bargain, his denial that any promises had been made might have been a courtroom ritual more sham than real.14 We thus cannot conclude that the allegations in Allison's habeas corpus petition, when measured against the "record" of the arraignment, were so "patently false or frivolous"15 as to warrant summary dismissal.16
30
North Carolina has recently undertaken major revisions of its plea-bargaining procedures in part to prevent the very kind of problem now before us.17 Plea bargaining is expressly legitimate. N.C.Gen.Stat. § 15A-1021, and Official Commentary (1975). The judge is directed to advise the defendant that courts have approved plea bargaining and he may thus admit to any promises without fear of jeopardizing an advantgeous agreement or prejudicing himself in the judge's eyes. See Brief for Respondent, App. D. Specific inquiry about whether a plea bargain has been struck is then made not only of the defendant, but also of his counsel and the prosecutor. N.C.Gen.Stat. §§ 15A-1023(a), (c) (1975). Finally, the entire proceeding is to be transcribed verbatim. § 15A-1026, as amended (Int.Supp.1976).18
31
(8) Had these commendable procedures been followed in the present case, Allison's petition would have been cast in a very different light. The careful explication of the legitimacy of plea bargaining, the questioning of both lawyers, and the verbatim record of their answers at the guilty-plea proceedings would almost surely have shown whether any bargain did exist and, if so, insured that it was not ignored.19 But the salutary reforms recently implemented by North Carolina highlight even more sharply the deficiencies in the record before the District Court in the present case.20
32
(9) This is not to say that every set of allegations not on its face without merit entitles a habeas corpus petitioner to an evidentiary hearing. As in civil cases generally, there exists a procedure whose purpose is to test whether facially adequate allegations have sufficient basis in fact to warrant plenary presentation of evidence. That procedure is, of course, the motion for summary judgment. Upon remand the warden will be free to make such a notion, supporting it with whatever proof he wishes to attach.21 If he chooses to do so, Allison will then be required either to produce some contrary proof indicating that there is a genuine issue of fact to be resolved by the District Court or to explain his inability to provide such proof. Fed.Rules Civ.Proc. 56(e), (f).
33
(10) Moreover, as is now expressly provided in the Rules Governing Habeas Corpus Cases, the district judge (or a magistrate to whom the case may be referred)22 may employ a variety of measures in an effort to avoid the need for an evidentiary hearing. Under Rule 6,23 a party may request and the judge may direct that discovery take place, and "there may be instances in which discovery would be appropriate (before an evidentiary hearing, and would show such a hearing) to be unnecessary. . . ." Advisory Committee Note to Rule 6, Rules Governing Habeas Corpus Cases, 28 U.S.C., p. 268 (1976 ed.). Under Rule 7,24 the judge can direct expansion of the record to include any appropriate materials that "enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing."25
34
(11) In short, it may turn out upon remand that a full evidentiary hearing is not required. But Allison is "entitled to careful consideration and plenary processing of (his claim,) including full opportunity for presentation of the relevant facts." Harris v. Nelson, 394 U.S., at 298, 89 S.Ct., at 1090. See Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv.L.Rev. 321, 337-338 (1973).26 Upon that understanding, the judgment of the Court of Appeals is affirmed.
35
It is so ordered.
36
THE CHIEF JUSTICE concurs in the judgment.
37
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
38
Mr. Justice POWELL, concurring.
39
I join the opinion of the Court, and write briefly only to emphasize the importance of finality to a system of justice.* Our traditional concern for "persons whom society has grievously wronged and for whom belated liberation is little enough compensation," Fay v. Noia, 372 U.S. 391, 441, 83 S.Ct. 822, 850, 9 L.Ed.2d 837 (1963), has resulted in a uniquely elaborate system of appeals and collateral review, even in cases in which the issue presented has little or nothing to do with innocence of the accused. The substantial societal interest in both innocence and finality of judgments is subordinated in many instances to formalisms.
40
The case before us today is not necessarily an example of abuse of the system. It is an example, however, of how finality can be frustrated by failure to adhere to proper procedures at the trial court level. I do not prejudge the ultimate result in this case by saying that respondent's guilty plea may well have been made knowingly and voluntarily. The case is here, five years after respondent's conviction, and following review by the North Carolina courts, the United States District Court, and the Court of Appeals for the Fourth Circuit, primarily because the record before us leaves room for some doubt as to the reliability of the procedure followed with respect to the guilty plea. All that we have in the record, as a basis for testing the possible merit of respondent's petition, are answers to a printed form certified by the trial judge. We do not know whether anything was said by the judge, the prosecutor, or counsel for respondent, other than the questions read from the form and the monosyllabic answers by respondent. There was no transcript of the proceedings.
41
As the Court's opinion indicates, there is every reason to believe that if a procedure similar to that prescribed by the new North Carolina statute is followed, a contention such as that made by respondent will justify an evidentiary hearing "only in the most extraordinary circumstances." Ante, at 80 n. 19. If all participants in the process at the plea stage are mindful of the importance of adhering carefully to prescribed procedures and of preserving a full record thereof, the causes of justice and finality both will be served.
1
The only record of the proceeding consists, therefore, of the executed form which reads, in its entirety (Pet. for Cert. 10-13), as follows:
"File 71 CrS 15073
"Film ..........
"In the General Court of Justice
"Superior Court Division
"State of North Carolina
"County of Alamance
"State of North Carolina
"vs.
"Gary Darrell Allison
"TRANSCRIPT OF PLEA
"The Defendant, being first duly sworn, makes the following answers to the questions asked by the Presiding Judge:
"1. Are you able to hear and understand my statements and questions?
Answer: Yes
"2. Are you now under the influence of any alcohol, drugs, narcotics, medicines, or other pills?
Answer: No
"3. Do you understand that you are charged with the felony of Attempted Safe Cracking?
Answer: Yes
"4. Has the charge been explained to you, and are you ready for trial?
Answer(:) Yes
"5. Do you understand that you have the right to plead not guilty and to be tried by a Jury?
Answer: Yes
"6. How do you plead to the charge of Attempted Safe Cracking Guilty, not Guilty, or nolo contendere?
Answer: Guilty
"7. (a) Are you in fact guilty? (Omit if plea is nolo contendere)
Answer: Yes
(b) (If applicable) Have you had explained to you and do you understand the meaning of a plea of nolo contendere?
Answer: . . .
"8. Do you understand that upon your plea of guilty you could be imprisoned for as much as minimum of 10 years to life?
Answer: Yes
"9. Have you had time to subpoena witnesses wanted by you?
Answer: Yes
"10. Have you had time to talk and confer with and have you conferred with your lawyer about this case, and are you satisfied with his services?
Answer: Yes
"11. Has the Solicitor, or your lawyer, or any policeman, law officer or anyone else made any promises or threat to you to influence you to plead guilty in this case?
Answer: No
"12. Do you now freely, understandingly and voluntarily authorize and instruct your lawyer to enter on your behalf a plea of guilty?
Answer: Yes
"13. Do you have any questions or any statement to make about what I have just said to you?
Answer: No
"I have read or heard read all of the above questions and answers and understand them, and the answers shown are the ones I gave in open Court, and they are true and correct.
"Gary Darrell Allison
"Defendant
"Sworn to and subscribed before me this 24th day of January, 1972.
"AOC-L Form 158
"Rev. 10/69
"Catherine Sykes, Ass't.
"Clerk Superior Court
"ADJUDICATION
"The undersigned Presiding Judge hereby finds and adjudges:
"I. That the defendant, Gary Darrell Allison, was sworn in open Court and the questions were asked him as set forth in the Transcript of Plea by the undersigned Judge, and the answers given thereto by said defendant are as set forth therein.
"II. That this defendant, was represented by attorney, M. Glenn
Pickard, who was (court appointed); and the defendant through his attorney, in open Court, plead (sic ) (guilty) to Attempted Safe Cracking as charged in the (warrant) (bill of indictment), of Breaking & Entering, Safe Burglary & Possession of Burglary Tools and in open Court, under oath further informs the Court that:
"1. He is and has been fully advised of his rights and the charges against him;
"2. He is and has been fully advised of the maximum punishment for said offense(s) charged, and for the offense(s) to which he pleads guilty;
"3. He is guilty of the offense(s) to which he pleads guilty;
"4. He authorizes his attorney to enter a plea of guilty to said charge(s);
"5. He has had ample time to confer with his attorney, and to subpoena witnesses desired by him;
"6. He is ready for trial;
"7. He is satisfied with the counsel and services of his attorney;
"And after further examination by the Court, the Court ascertains, determines and adjudges, that the plea of guilty, by the defendant is freely, understandingly and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency. It is, therefore, ORDERED that his plea of guilty be entered in the record, and that the Transcript of Plea and Adjudication be filed and recorded.
"This 24th day of January, 1972.
"Marvin Blount, Jr.
"Judge Presiding"
2
See generally Santobello v. New York, 404 U.S. 257, 260-261, 92 S.Ct. 495, 497-498, 30 L.Ed.2d 427; Brady v. United States, 397 U.S. 742, 751-752, 90 S.Ct. 1463, 1470-1471, 25 L.Ed.2d 747; ABA Project on Standards for Criminal Justice, Pleas of Guilty 1-3 (Approved Draft 1968) (hereinafter ABA Standards); ALI Model Code of Pre-Arraignment Procedure § 350.3, Commentary (1975) (hereinafter ALI Code).
3
Fontaine and Machibroda were by no means the first cases in which this Court held that postconviction collateral relief might be available to a person convicted after having pleaded guilty. See, e. g., Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830.
4
The standards of §§ 2243 and 2255 differ somewhat in phrasing. Compare § 2243 (A state prisoner seeking a writ of habeas corpus is to be granted an evidentiary hearing "unless it appears from the application that the applicant . . . is not entitled thereto") with § 2255 (A federal prisoner moving for relief is to be granted a hearing "(u)nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief"). However, the remedy under § 2255 was designed to be "exactly commensurate" with the federal habeas corpus remedy, Swain v. Pressley, 430 U.S. 372, 381, 97 S.Ct. 1224, 1230, 51 L.Ed.2d 411; Hill v. United States, 368 U.S. 424, 427, 82 S.Ct. 468, 470, 7 L.Ed.2d 417; United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 272, 96 L.Ed. 232, and has been construed in accordance with that design, e. g., Sanders v. United States, 373 U.S. 1, 6-14, 83 S.Ct. 1068, 1072-1076, 10 L.Ed.2d 148. See also Developments in the Law Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1173, and n. 126 (1970).
Unlike federal habeas corpus proceedings, a motion under § 2255 is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner. In some cases, the judge's recollection of the events at issue may enable him summarily to dismiss a § 2255 motion, even though he could not similarly dispose of a habeas corpus petition challenging a state conviction but presenting identical allegations. Cf. Machibroda, supra, 368 U.S. at 495, 82 S.Ct., at 514 ("Nor were the circumstances alleged of a kind that the District Judge could completely resolve by drawing upon his own personal knowledge or recollection"). To this extent, the standard may be administered in a somewhat different fashion.
5
See, e. g., United States v. McCarthy, 433 F.2d 591, 593 (CA1); United States v. LaVallee, 319 F.2d 308, 314 (CA2); Trotter v. United States, 359 F.2d 419 (CA2); United States v. Valenciano, 495 F.2d 585 (CA3); Edwards v. Garrison, 529 F.2d 1374, 1377 (CA4); Bryan v. United States, 492 F.2d 775, 778 (CA5); Mayes v. Pickett, 537 F.2d 1080, 1082-1083 (CA9); Jones v. United States, 384 F.2d 916, 917 (CA9); United States v. Simpson, 141 U.S.App.D.C. 8, 11, 436 F.2d 162, 165. In citing these cases we do not necessarily approve the result in any of them.
6
An analogy is to be found in the law of contracts. The parol evidence rule has as its very purpose the exclusion of evidence designed to repudiate provisions in a written integration of contractual terms. Yet even a written contractual provision declaring that the contract contains the complete agreement of the parties, and that no antecedent or extrinsic representations exist, does not conclusively bar subsequent proof that such additional agreements exist and should be given force. The provision denying the existence of such agreements, of course, carries great weight, but it can be set aside by a court on the grounds of fraud, mistake, duress, "or on some ground that is sufficient for setting aside other contracts." 3 A. Corbin, Contracts § 578, p. 403 (2d ed. 1960); see id., at 405-407, and nn. 41, 43.
7
See Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases (" '(N)otice' pleading is not sufficient, for the petition is expected to state facts that point to a 'real possibility of constitutional error' "), 28 U.S.C.App., p. 266 (1976 ed.).
8
Allison's petition stated that his lawyer, "who had consulted presumably with the Judge and Solicitor," had promised that the maximum sentence to be imposed was 10 years. This allegation, in light of the other circumstances of this case, raised the serious constitutional question whether his guilty plea was knowingly and voluntarily made. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747.
9
See, e. g., Advisory Committee Notes to 1974 Amendment of Fed.Rule Crim.Proc. 11, 18 U.S.C.App., p. 1304 (1970 ed., Supp. V); ABA Standards, Commentary 60-64; ALI Code, § 350.5, Note and Commentary; President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 9, 12-13, 111, 115 (1967) (hereinafter Task Force Report).
10
The Santabello opinion declared that plea bargaining was "an essential component" of the criminal process which, "(p)roperly administered, . . . is to be encouraged." 404 U.S., at 260, 92 S.Ct., at 498.
11
See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Brady v. United States, supra.
12
According to the petitioner's brief, the form of inquiry employed at Allison's arraignment dates from 1967.
13
See, e. g., United States v. McCarthy, 433 F.2d, at 593; Walters v. Harris, 460 F.2d 988, 993 (CA4); United States v. Williams, 407 F.2d 940, 947-949, and n. 13 (CA4); Bryan v. United States, 492 F.2d, at 780-781; Moody v. United States, 497 F.2d 359, 362-363, and n. 2 (CA7); United States v. Tweedy, 419 F.2d 192, 193 (CA9); Jones v. United States, 423 F.2d 252 (CA9); White v. Gaffney, 435 F.2d 1241 (CA10); ABA Standards, Commentary 60-64; Task Force Report 9, 12-13, 111, 115; A. Trebach, The Rationing of Justice 159-160 (1964).
14
See Advisory Committee Notes to 1974 Amendment of Fed.Rule Crim.Proc. 11, 18 U.S.C.App., p. 1304 (1970 ed., Supp. V); ABA Standards, supra, Commentary 61-62; Task Force, Report, at 111.
15
There is another ground to support the view that the allegations were not wholly incredible. Allison was indicted on three separate charges. All three were listed in the printed arraignment form, but he pleaded guilty to only one of them; the other two may well have been dismissed pursuant to an agreement. And this is not a case in which there is a record of the sentencing proceedings, see, e. g., United States v. Tweedy, supra; Lynott v. United States, 360 F.2d 586 (CA3), or where delay by the prisoner in seeking postconviction relief, see, e. g., Raines v. United States, 423 F.2d 526, 528 (CA4); United States v. Tweedy, supra, at 195; see also Machibroda v. United States, supra, 368 U.S., at 498-499, 82 S.Ct., at 515-516 (Clark, J., dissenting), undercuts the credibility of his allegations.
16
For the reasons stated in the text, the "finding" recorded on the printed form that Allison's plea was entered "understandingly and voluntarily, . . . without promise of leniency," see n. 1, supra, was not binding under 28 U.S.C. § 2254(d) on the District Court. See, e. g., Edwards v. Garrison, 529 F.2d, at 1377-1378, n. 3. See also Machibroda v. United States, supra, 368 U.S. at 494-495, 82 S.Ct., at 514 ("The factual allegations (at issue) related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light"); Friendly, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38 U.Chi.L.Rev. 142, 152 (1970).
17
In 1973, the North Carolina Legislature enacted a comprehensive set of procedures governing disposition by guilty plea and plea arrangement, modeled after the ALI Model Code of Pre-Arraignment Procedure, Art. 350 (Tent. Draft No. 5, 1972). One of the stated purposes of the reform was to allow "defendants to tell the truth in plea proceedings. They should not be expected to go before judges after plea negotiations and lie by saying no promises or agreements were made." Official Commentary to Art. 58, N.C.Gen.Stat. ss15A-1021 to -1027 (1975). Appendices to the respondent's brief indicate that the form used by trial judges in conducting plea hearings has twice been amended since the passage of this legislation.
18
These reforms are quite similar to those undertaken in the 1974 Amendment of Fed.Rule Crim.Proc. 11, as well as to the recommendations of the ABA Standards and the ALI Code.
19
A principal purpose of the North Carolina statutory reforms was to permit quick disposition of baseless collateral attacks. Official Commentary, supra, n. 17 ("If the procedures of plea negotiation are on the record and accurately reflect the things (legitimately) done, the basis for later challenge is effectively minimized"). Indeed, a petitioner challenging a plea given pursuant to procedures like those now mandated in North Carolina will necessarily by asserting that not only his own transcribed responses, but those given by two lawyers, were untruthful. Especially as it becomes routine for prosecutors and defense lawyers to acknowledge that plea bargains have been made, such a contention will entitle a petitioner to an evidentiary hearing only in the most extraordinary circumstances.
20
This is not to suggest that a plea of guilty entered pursuant to procedures like those in effect at Allison's arraignment is necessarily vulnerable to collateral attack. It is simply to say that procedures like those now in effect in North Carolina serve (1) to prevent the occurrence of constitutional errors in the arraignment process, and (2) to discourage the filing of baseless petitions for habeas corpus and facilitate speedy but fair disposition of those that are filed.
21
Indeed, it would seem easier for the State than for an indigent, untutored prisoner to obtain affidavits from the principals, particularly given the potential availability of discovery, see n. 23, infra.
22
Title 28 U.S.C. §§ 636(b)(2), (3) authorize magistrates to assist "a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions," and preliminary to review "applications for posttrial relief made by individuals convicted of criminal offenses . . . ." Rule 10 of the newly promulgated Rules Governing Habeas Corpus Cases similarly authorizes performance by a magistrate of virtually all the duties of a district judge, except for the exercise of ultimate decisionmaking authority. See Advisory Committee Note to Rule 10, Wingo v. Wedding, 418 U.S. 461, 473-474, 94 S.Ct. 2842, 2849-2850, 41 L.Ed.2d 879.
23
Rule 6 of the Rules Governing Habeas Corpus, entitled "Discovery," provides:
"(a) Leave of court required. A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise. If necessary for effective utilization of discovery procedures, counsel shall be appointed by the judge for a petitioner who qualifies for the appointment of counsel under 18 U.S.C. § 3006A(g).
"(b) Requests for discovery. Requests for discovery shall be accompanied by a statement of the questions, interrogatories, or requests for admission and a list of the documents, if any, sought to be produced.
"(c) Expenses. If the respondent is granted leave to take the deposition of the petitioner or any other person the judge may as a condition of taking it direct that the respondent pay the expenses of travel and subsistence and fees of counsel for the petitioner to attend the taking of the deposition."
24
Rule 7 of the Rules Governing Habeas Corpus Cases, entitled "Expansion of Record," provides:
"(a) Direction for expansion. If the petition is not dismissed summarily the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition.
"(b) Materials to be added. The expanded record may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as a part of the record.
"(c) Submission to opposing party. In any case in which an expanded record is directed, copies of the letters, documents, exhibits, and affidavits proposed to be included shall be submitted to the party against whom they are to be offered, and he shall be afforded an opportunity to admit or deny their correctness."
25
There may be cases in which expansion of the record will provide "evidence against a petitioner's extra-record contentions . . . so overwhelming as to justify a conclusion that an (allegation of a dishonored plea agreement) does not raise a substantial issue of fact." Moorhead v. United States, 456 F.2d 992, 996 (CA3). But before dismissing facially adequate allegations short of an evidentiary hearing, ordinarily a district judge should seek as a minimum to obtain affidavits from all persons likely to have firsthand knowledge of the existence of any plea agreement. See Walters v. Harris, 460 F.2d, at 992. " 'When the issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive, but that is not to say they may not be helpful.' " Advisory Committee Note to Rule 7, Rules Governing Habeas Corpus Cases, 28 U.S.C., p. 269 (1976 ed.), quoting Raines v. United States, 423 F.2d 526, 530 (CA4).
26
The correspondence between the Magistrate and Allison pertaining to Allison's petition for rehearing, see supra, at 70, did not provide such an opportunity. The Magistrate directed Allison to obtain a notarized statement from his codefendant, who allegedly had heard Allison's attorney make the promise as to sentence. Allison was confined in prison and without legal assistance. The codefendant was confined in a different prison. In these circumstances, the Magistrate imposed upon Allison a novel and formless burden of supplying proof, without the benefit of compulsory process and without any intimation that dismissal would follow if that burden were not met. It can thus hardly be said that Allison was granted a "full opportunity for presentation of the relevant facts" or that his petition received "careful consideration and plenary processing."
*
The importance of finality to the criminal defendant and to society was well put by Mr. Justice Harlan:
"Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community." Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct. 1068, 1082, 10 L.Ed.2d 148 (1963) (dissenting opinion).
See also Schneckloth v. Bustamonte, 412 U.S. 218, 256-266, 93 S.Ct. 2041, 2062-2067, 36 L.Ed.2d 854 (1973) (Powell, J., concurring).
| 01
|
431 U.S. 99
97 S.Ct. 1635
52 L.Ed.2d 166
ENVIRONMENTAL PROTECTION AGENCY, Petitioner,v.Edmund G. BROWN, Jr., Governor of California, et al. ENVIRONMENTAL PROTECTION AGENCY, Petitioner, v. State of MARYLAND et al. STATE AIR POLLUTION CONTROL BOARD, Petitioner, v. Douglas M. COSTLE, Administrator, Environmental Protection Agency. Douglas M. COSTLE, Administrator, Environmental Protection Agency, Petitioner, v. DISTRICT OF COLUMBIA et al.
Nos. 75-909, 75-960, 75-1050 and 75-1055.
May 2, 1977.
PER CURIAM.
1
These cases arise under the Clean Air Act, as amended by the Clean Air Amendments of 1970, 84 Stat. 1676, 42 U.S.C. § 1857 et seq., and raise questions concerning the authority of the Administrator of the Environmental Protection Agency to compel various types of implementation and enforcement actions by the States. Four separate decisions in the Courts of Appeals reviewed transportation control plans promulgated by the Administrator for several States which had previously failed to submit adequate plans of their own. Four petitions have been filed seeking review of those decisions which, with limited exceptions, invalidated the Administrator's transportation control plans which had been adopted in the form of regulations.
2
Those transportation control plans have a variety of aspects which need not be discussed in great detail to explain our disposition of these cases. In general, they imposed upon the States the obligations (1) to develop an inspection and maintenance program pertaining to the vehicles registered in the affected Air Quality Control Regions, and to submit to the Administrator, by fixed deadlines, both a schedule of compliance and the operative regulations by which the program was to be run; (2) to develop various retrofit programs pertaining to several classes of older vehicles, in order to minimize several different types of emissions; (3) to designate and enforce preferential bus and carpool lanes, on streets sometimes specifically identified in the regulations and sometimes left to be chosen by the State; (4) to develop a program to monitor actual emissions as affected by the foregoing programs; and (5) to adopt certain other programs which varied from State to State.
3
The critical fact about all of the foregoing obligations was that they were imposed on the States, under 40 CFR § 52.23 (1976), as elements of an applicable implementation plan. A State's failure to carry out any of them would therefore not merely allow the Administrator to step in and carry them out himself under § 113(a)(2) of the Clean Air Act,1 but would, in the view of each of the Courts of Appeals, render the State "in violation of any requirement of an applicable implementation plan" and therefore apparently subject to direct enforcement actions against it under the provisions of § 113(a)(1), 42 U.S.C. § 1857c-8(a)(1):
4
"Whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of any requirement of an applicable implementation plan, the Administrator shall notify the person in violation of the plan and the State in which the plan applies of such finding. If such violation extends beyond the 30th day after the date of the Administrator's notification, the Administrator may issue an order requiring such person to comply with the requirements of such plan or he may bring a civil action in accordance with subsection (b) of this action."
5
Under dual challenges by the States that these regulations were not within the mandate of the Act, and that if they were they were in violation of the Constitution, the United States Courts of Appeals for the Ninth, Fourth, and District of Columbia Circuits struck them down. All of the courts rested on statutory interpretation, but noted also that serious constitutional questions might be raised if the statute were read as the United States argued it should be. Brown v. EPA, 521 F.2d 827 (CA9 1975); Arizona v. EPA, 521 F.2d 825 (CA9 1975); District of Columbia v. Train, 172 U.S.App.D.C. 311, 521 F.2d 971 (1975); Maryland v. EPA, 530 F.2d 215 (CA4 1975). The only substantial variation in the outcome of these decisions2 was that the District of Columbia Circuit affirmed regulations requiring the creation of bus lanes, the purchase by the affected jurisdictions of a fixed number of new buses, and the denial of registration to a vehicle whose owner is unable to produce a federal certificate of compliance, should a federal inspection program be instituted.
6
The Solicitor General's petitions from all three Courts of Appeals challenged them only insofar as they invalidated the regulations requiring state inspection and maintenance programs. In addition, we granted the petition for certiorari of the Commonwealth of Virginia on its challenge to the regulations which the District of Columbia Circuit had upheld. Prior to argument, the Solicitor General informed the Court that repeal of the bus purchase regulations was imminent, Reply Brief for Federal Parties 25,3 and that issue was thereby effectively removed from the case. Thus the litigation has undergone a great deal of shrinkage since the decisions below due to the federal parties' exercise of their prerogative not to seek review of the invalidation of certain regulations.
7
But the federal parties have not merely renounced an intent to pursue certain specified regulations; they now appear to admit that those remaining in controversy are invalid unless modified in certain respects:
8
"The Administrator . . . concedes the necessity of removing from the regulations all requirements that the States submit legally adopted regulations; the (Administrator's) regulations contain no requirement that the State adopt laws." Brief for Federal Parties 20 n. 14.
9
The federal parties' position now appears to be that, while the challenged transportation plans do not require the enactment of state legislation, they do now contain, and must be modified to eliminate, certain requirements that the State promulgate regulations. See Reply Brief for Federal Parties 14 n. 22.
10
We decline the federal parties' invitation to pass upon the EPA regulations, when the only ones before us are admitted to be in need of certain essential modifications. Such action on our part would amount to the rendering of an advisory opinion. For this Court to review regulations normally required to be first reviewed in the Court of Appeals, before such review is had, is extraordinary. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584-585, 72 S.Ct. 863, 865, 96 L.Ed. 1153 (1952). For it to review regulations not yet promulgated, the final form of which has only been hinted at, would be wholly novel. See generally Columbia Broadcasting System v. United States, 316 U.S. 407, 417-419, 62 S.Ct. 1194, 1200-1201, 86 L.Ed. 1563 (1942); United States v. Los Angeles & Salt Lake R. Co., 273 U.S. 299, 309-310, 47 S.Ct. 413, 414, 71 L.Ed. 651 (1927).
11
The judgments of the respective Courts of Appeals are vacated, and the cases are remanded for consideration of mootness and such other proceedings as may be consistent with this opinion.
12
It is so ordered.
13
Mr. Justice STEVENS, dissenting.
14
The action the Court takes today is just as puzzling as the federal parties' position. Unless and until the Environmental Protection Agency rescinds the regulations in dispute, it is perfectly clear that the litigation is not moot. Moreover, an apparent admission that those regulations are invalid unless modified is not a proper reason for vacating the Court of Appeals judgments which invalidated the regulations.
15
If the Court is satisfied that the EPA Administrator will modify the regulations regardless of the outcome of the litigation, the writs of certiorari should be dismissed as improvidently granted. On the other hand, if the survival of the regulations is dependent on our disposition of these cases, we should address the merits and resolve the issues which have been fully briefed and argued. By vacating the judgments below, the Court hands the federal parties a partial victory as a reward for an apparent concession that their position is not supported by the statute. I respectfully dissent.
1
Section 113(a)(2), 42 U.S.C. § 1857c-8(a)(2), provides:
"Whenever, on the basis of information available to him, the Administrator finds that violations of an applicable implementation plan are so widespread that such violations appear to result from a failure of the State in which the plan applies to enforce the plan effectively, he shall so notify the State. If the Administrator finds such failure extends beyond the 30th day after such notice, he shall give public notice of such finding. During the period beginning with such public notice and ending when such State satisfies the Administrator that it will enforce such plan (hereafter referred to in this section as 'period of federally assumed enforcement'), the Administrator may enforce any requirement of such plan with respect to any person
"(A) by issuing an order to comply with such requirement, or
"(B) by bringing a civil action under subsection (b) of this section."
2
Prior to the decision of the Ninth Circuit, a similar set of regulations pertaining to Pennsylvania had been upheld by the Third Circuit. Pennsylvania v. EPA, 500 F.2d 246 (1974). That decision is not presently before the Court.
3
The regulations were officially rescinded on February 8, 1977. 42 Fed.Reg. 7957.
| 89
|
431 U.S. 85
97 S.Ct. 1614
52 L.Ed.2d 155
LINMARK ASSOCIATES, INC. and William Mellman, Petitioners,v.TOWNSHIP OF WILLINGBORO and Gerald Daly.
No. 76-357.
Argued March 2, 1977.
Decided May 2, 1977.
Syllabus
A township ordinance prohibiting the posting of real estate "For Sale" and "Sold" signs for the purpose of stemming what the township perceived as the flight of white homeowners from a racially integrated community held to violate the First Amendment. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346. Pp. 91-98.
(a) The ordinance cannot be sustained on the ground that it restricts only one method of communication while leaving ample alternative communication channels open. The alternatives (primarily newspaper advertising and listing with real estate agents, which involve more cost and less autonomy than signs, are less likely to reach persons not deliberately seeking sales information, and may be less effective) are far from satisfactory. And the ordinance is not genuinely concerned with the place (front lawns) or the manner (signs) of the speech, but rather proscribes particular types of signs based on their content because the township fears their "primary" effect that they will cause those receiving the information to act upon it. Pp. 93-94.
(b) Moreover, despite the importance of achieving the asserted goal of promoting stable, integrated housing, the ordinance cannot be upheld on the ground that it promotes an important governmental objective, since it does not appear that the ordinance was needed to achieve that objective and, in any event, the First Amendment disables the township from achieving that objective by restricting the free flow of truthful commercial information. Pp. 94-97.
3 Cir., 535 F.2d 786, reversed.
John P. Hauch, Jr., Haddonfield, N. J., for petitioners.
Myron H. Gottlieb, Bordentown, N. J., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case presents the question whether the First Amendment permits a municipality to prohibit the posting of "For Sale" or "Sold" signs when the municipality acts to stem what it perceives as the flight of white homeowners from a racially integrated community.
2
Petitioner Linmark Associates, a New Jersey corporation, owned a piece of realty in the township of Willingboro, N. J. Petitioner decided to sell its property, and on March 26, 1974, listed it with petitioner Mellman, a real estate agent. To attract interest in the property, petitioners desired to place a "For Sale" sign on the lawn. Willingboro, however, narrowly limits the types of signs that can be erected on land in the township. Although prior to March 1974 "For Sale" and "Sold" signs were permitted subject to certain restrictions not at issue here, on March 18, 1974, the Township Council enacted Ordinance 5-1974, repealing the statutory authorization for such signs on all but model homes. Petitioners brought this action against both the township and the building inspector charged with enforcing the ban on "For Sale" signs, seeking declaratory and injunctive relief.1 The District Court granted a declaration of unconstitutionality, but a divided Court of Appeals reversed, 535 F.2d 786 (CA3 1976). We granted certiorari, 429 U.S. 938, 97 S.Ct. 351, 50 L.Ed.2d 307 (1976), and reverse the judgment of the Court of Appeals.
3
* The township of Willingboro is a residential community located in southern New Jersey near Fort Dix, McGuire Air Force Base, and offices of several national corporations. The township was developed as a middle-income community by Levitt & Sons, beginning in the late 1950's. It is served by over 80 real estate agents.
4
During the 1960's Willingboro underwent rapid growth. The white population increased by almost 350%, and the nonwhite population rose from 60 to over 5,000, or from .005% of the population to 11.7%. As of the 1970 census, almost 44,000 people resided in Willingboro. In the 1970's, however, the population growth slowed; from 1970 to 1973, the latest year for which figures were available at the time of trial, Willingboro's population rose by only 3%. More significantly, the white population actually declined by almost 2,000 in this interval, a drop of over 5%, while the nonwhite population grew by more than 3,000, an increase of approximately 60%. By 1973, nonwhites constituted 18.2% of the township's population.
5
At the trial in this case respondents presented testimony from two real estate agents, two members of the Township Council, and three members of the Human Relations Commission, all of whom agreed that a major cause in the decline in the white population was "panic selling" that is, selling by whites who feared that the township was becoming all black, and that property values would decline. One real estate agent estimated that the reason 80% of the sellers gave for their decision to sell was that "the whole town was for sale, and they didn't want to be caught in any bind." App. in No. 75-144 (CA3), pp. 219a-220a. Respondents' witnesses also testified that in their view "For Sale" and "Sold" signs were a major catalyst of these fears.
6
William Kearns, the Mayor of Willingboro during the year preceding enactment of the ordinance and a member of the Council when the ordinance was enacted, testified concerning the events leading up to its passage. Id., at 183a-186a. According to Kearns, beginning at least in 1973 the community became concerned about the changing population. At a town meeting in February 1973, called to discuss "Willingboro, to sell or not to sell," a member of the community suggested that real estate signs be banned. The suggestion received the overwhelming support of those attending the meeting. Kearns brought the proposal to the Township Council, which requested the Township Solicitor to study it. The Council also contacted National Neighbors, a nationwide organization promoting integrated housing, and obtained the names of other communities that had prohibited "For Sale" signs. After obtaining a favorable report from Shaker Heights, Ohio, on its ordinance, and after receiving an endorsement of the proposed ban from the Willingboro Human Relations Commission, the Council began drafting legislation.
7
Rather than following its usual procedure of conducting a public hearing only after the proposed law had received preliminary Council approval, the Council scheduled two public meetings on Ordinance 5-1974. The first took place in February 1974, before the initial Council vote, and the second in March 1974, after the vote. At the conclusion of the second hearing, the ordinance was approved unanimously.
8
The transcripts of the Council hearings were introduced into evidence at trial. They reveal that at the hearings the Council received important information bearing on the need for and likely impact of the ordinance. With respect to the justification for the ordinance, the Council was told (a) that a study of Willingboro home sales in 1973 revealed that the turnover rate was roughly 11%, App. in No. 75-144 (CA3), p. 89a;2 (b) that in February 1974 a typical month 230 "For Sale" signs were posted among the 11,000 houses in the community, id., at 94a, 37a;3 and (c) that the Willingboro Tax Assessor had reported that "by and large the increased value of Willingboro properties was way ahead of ... comparable communities." Id., at 106a. With respect to the projected effect of the ordinance, several real estate agents reported that 30%-35% of their purchaser-clients came to them because they had seen one of the agent's "For Sale" or "Sold" signs, id., at 33a, 47a, 49a, 57a,4 and one agent estimated, based on his experience in a neighboring community that had already banned signs, that selling realty without signs takes twice as long as selling with signs, id., at 42a.
9
The transcripts of the Council hearings also reveal that the hearings provided useful barometers of public sentiment toward the proposed ordinance. The Council was told, for example, that surveys in two areas of the township found overwhelming support for the law, id., at 29a, 84a.5 In addition, at least at the second meeting, the citizens, who were not real estate agents and who spoke, favored the proposed ordinance by a sizable margin. Interestingly, however, at both meetings those defending the ordinance focused primarily on aesthetic considerations and on the effect of signs and transiency generally on property values. Few speakers directly referred to the changing racial composition of Willingboro in supporting the proposed law.
10
Although the ordinance had been in effect for nine months prior to trial, no statistical data were presented concerning its impact. Respondents' witnesses all agreed, however, that the number of persons selling or considering selling their houses because of racial fears had declined sharply. But several of these witnesses also testified that the number of sales in Willingboro had not declined since the ordinance was enacted. Moreover, respondents' real-estate-agent witnesses both stated that their business had increased by 25% since the ordinance was enacted, id., at 164a, 226a, and one of these agents reported that the racial composition of his clientele remained unchanged, id., at 160a.
11
The District Court did not make specific findings of fact. In the course of its opinion, however, the court stated that Willingboro "is to a large extent a transient community, partly due to its proximity to the military facility at Fort Dix and in part due to the numerous transfers of real estate." The court also stated that there was "no evidence" that whites were leaving Willingboro en masse as "For Sale" signs appeared, but "merely an indication that its residents are concerned that there may be a large influx of minority groups moving in to the town with the resultant effect being a reduction in property values." The Court of Appeals essentially accepted these "findings," although it found that Willingboro was experiencing "incipient" panic selling, 535 F.2d, at 799, and that a "fear psychology (had) developed," id., at 790.
II
A.
12
The starting point for analysis of petitioners' First Amendment claim must be the two recent decisions in which this Court has eroded the "commercial speech" exception to the First Amendment. In Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), decided less than two years ago, this Court for the first time expressed its dissatisfaction with the then-prevalent approach of resolving a class of First Amendment claims simply by categorizing the speech as "commercial." Id., at 826, 95 S.Ct. at 2235. "Regardless of the particular label," we stated, "a court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation." Ibid. After conducting such an analysis in Bigelow we concluded that Virginia could not constitutionally punish the publisher of a newspaper for printing an abortion referral agency's paid advertisement which not only promoted the agency's services but also contained information about the availability of abortions.
13
(1) One year later, in Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), we went further. Conceding that "(s)ome fragment of hope for the continuing validity of a 'commercial speech' exception arguably might have persisted because of the subject matter of the advertisement in Bigelow," id., at 760, 96 S.Ct., at 1825, we held quite simply, that commercial speech is not "wholly outside the protection of the First Amendment," id., at 761, 96 S.Ct., at 1805. Although recognizing that "(s)ome forms of commercial speech regulation" such as regulation of false or misleading speech "are surely permissible," id., at 770, 96 S.Ct., at 1830, we had little difficulty in finding that Virginia's ban on the advertising of prescription drug prices by pharmacists was unconstitutional.6
14
Respondents contend, as they must, that the "For Sale" signs banned in Willingboro are constitutionally distinguishable from the abortion and drug advertisements we have previously considered. It is to the distinctions respondents advance that we now turn.
B
15
(2) If the Willingboro law is to be treated differently from those invalidated in Bigelow and Virginia Pharmacy Bd., it cannot be because the speakers or listeners have a lesser First Amendment interest in the subject matter of the speech that is regulated here. Persons desiring to sell their homes are just as interested in communicating that fact as are sellers of other goods and services. Similarly, would-be purchasers of realty are no less interested in receiving information about available property than are purchasers of other commodities in receiving like information about those commodities. And the societal interest in "the free flow of commercial information," Virginia Pharmacy Bd., supra, at 764, 96 S.Ct., at 1826, is in no way lessened by the fact that the subject of the commercial information here is realty rather than abortions or drugs.
16
Respondents nevertheless argue that First Amendment concerns are less directly implicated by Willingboro's ordinance because it restricts only one method of communication. This distinction is not without significance to First Amendment analysis, since laws regulating the time, place, or manner of speech stand on a different footing from laws prohibiting speech altogether. Cf., e. g., Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Respondents' effort to defend the ordinance on this ground is unpersuasive, however, for two reasons.
17
First, serious questions exist as to whether the ordinance "leave(s) open ample alternative channels for communication," Virginia Pharmacy Bd., supra, 425 U.S., at 771, 96 S.Ct., at 1830. Although in theory sellers remain free to employ a number of different alternatives, in practice realty is not marketed through leaflets, sound trucks, demonstrations, or the like. The options to which sellers realistically are relegated primarily newspaper advertising and listing with real estate agents involve more cost and less autonomy than "For Sale" signs; cf. Martin v. City of Struthers, 319 U.S. 141, 146, 63 S.Ct. 862, 865, 87 L.Ed. 1313 (1943); Kovacs v. Cooper, supra, 336 U.S., at 102-103, 69 S.Ct., at 461-462 (Black, J., dissenting); are less likely to reach persons not deliberately seeking sales information, cf. United States v. O'Brien, 391 U.S. 367, 388-389, 88 S.Ct. 1673, 1685-1686, 20 L.Ed.2d 672 (1968) (Harlan, J., concurring); and may be less effective media for communicating the message that is conveyed by a "For Sale" sign in front of the house to be sold, cf. Cohen v. California, 403 U.S. 15, 25-26, 91 S.Ct. 1780, 1788-1789, 29 L.Ed.2d 284 (1971). The alternatives, then, are far from satisfactory.
18
Second, the Willingboro ordinance is not genuinely concerned with the place of the speech front lawns or the manner of the speech signs. The township has not prohibited all lawn signs or all lawn signs of a particular size or shape in order to promote aesthetic values or any other value "unrelated to the suppression of free expression," United States v. O'Brien, supra, 391 U.S., at 377, 88 S.Ct., at 1679, 20 L.Ed.2d 672.7 Nor has it acted to restrict a mode of communication that "intrudes on the privacy of the home, . . . makes it impractical for the unwilling viewer or auditor to avoid exposure," Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975), or otherwise reaches a group the township has a right to protect.8 And respondents have not demonstrated that the place or manner of the speech produces a detrimental "secondary effect" on society, Young v. American Mini Theatres, 427 U.S. 50, 71 n. 34, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (1976). Rather, Willingboro has proscribed particular types of signs based on their content because it fears their "primary" effect that they will cause those receiving the information to act upon it. That the proscription applies only to one mode of communication, therefore, does not transform this into a "time, place, or manner" case. See, e. g., Erznoznik v. City of Jacksonville, supra; Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Tinker v. Des Moines School Dist., 393 U.S. 503, 510, 89 S.Ct. 733, 738, 21 L.Ed.2d 731 (1969). If the ordinance is to be sustained, it must be on the basis of the township's interest in regulating the content of the communication, and not on any interest in regulating the form.
C
19
Respondents do seek to distinguish Bigelow and Virginia Pharmacy Bd. by relying on the vital goal this ordinance serves: namely, promoting stable, racially integrated housing. There can be no question about the importance of achieving this goal. This Court has expressly recognized that substantial benefits flow to both whites and blacks from interracial association and that Congress has made a strong national commitment to promote integrated housing. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972).
20
That this ordinance was enacted to achieve an important governmental objective, however, does not distinguish the case from Virginia Pharmacy Bd. In that case the State argued that its prohibition on prescription drug price advertising furthered the health and safety of state residents by preventing low cost, low quality pharmacists from driving reputable pharmacists out of business. We expressly recognized the "strong interest" of a State in maintaining "professionalism on the part of licensed pharmacists." 425 U.S., at 766, 96 S.Ct., at 1828. But we nevertheless found the Virginia law unconstitutional because we were unpersuaded that the law was necessary to achieve this objective, and were convinced that in any event, the First Amendment disabled the State from achieving its goal by restricting the free flow of truthful information. For the same reasons we conclude that the Willingboro ordinance at issue here is also constitutionally infirm.
21
The record here demonstrates that respondents failed to establish that this ordinance is needed to assure that Willingboro remains an integrated community.9 As the District Court concluded, the evidence does not support the Council's apparent fears that Willingboro was experiencing a substantial incidence of panic selling by white homeowners. A fortiori, the evidence does not establish that "For Sale" signs in front of 2% of Willingboro homes were a major cause of panic selling. And the record does not confirm the township's assumption that proscribing such signs will reduce public awareness of realty sales and thereby decrease public concern over selling.10
22
(3) The constitutional defect in this ordinance, however, is far more basic. The Township Council here, like the Virginia Assembly in Virginia Pharmacy Bd. acted to prevent its residents from obtaining certain information. That information, which pertains to sales activity in Willingboro, is of vital interest to Willingboro residents, since it may bear on one of the most important decisions they have a right to make: where to live and raise their families. The Council has sought to restrict the free flow of these data because it fears that otherwise homeowners will make decisions inimical to what the Council views as the homeowners' self-interest and the corporate interest of the township: they will choose to leave town. The Council's concern, then, was not with any commercial aspect of "For Sale" signs with offerors communicating offers to offerees but with the substance of the information communicated to Willingboro citizens. If dissemination of this information can be restricted, then every locality in the country can suppress any facts that reflect poorly on the locality, so long as a plausible claim can be made that disclosure would cause the recipients of the information to act "irrationally." Virginia Pharmacy Bd. denies government such sweeping powers. As we said there in rejecting Virginia's claim that the only way it could enable its citizens to find their self-interest was to deny them information that is neither false nor misleading:
23
"There is . . . an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. . . . But the choice among these alternative approaches is not ours to make or the Virginia General Assembly's. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us." 425 U.S., at 770, 96 S.Ct., at 1829.
24
Or as Mr. Justice Brandeis put it: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression." Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 649, 71 L.Ed. 1095 (1927) (concurring opinion).
25
Since we can find no meaningful distinction between Ordinance 5-1974 and the statute overturned in Virginia Pharmacy Bd., we must conclude that this ordinance violates the First Amendment.
III
26
In invalidating this law, we by no means leave Willingboro defenseless in its effort to promote integrated housing. The township obviously remains free to continue "the process of education" it has already begun. It can give widespread publicity through "Not for Sale" signs or other methods to the number of whites remaining in Willingboro. And it surely can endeavor to create inducements to retain individuals who are considering selling their homes.
27
Beyond this, we reaffirm our statement in Virginia Pharmacy Bd. that the "commonsense differences between speech that does 'no more than propose a commercial transaction,' Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. (376,) 385 (, 93 S.Ct. 2553, 2558, 37 L.Ed.2d 669, 676-677) ((1973)), and other varieties . . . suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired." 425 U.S., at 771-772, 96 S.Ct., at 1830 n. 24. Laws dealing with false or misleading signs, and laws requiring such signs to "appear in such a form, or include such additional information . . . as (is) necessary to prevent (their) being deceptive," ibid., therefore, would raise very different constitutional questions. We leave those questions for another day, and simply hold that the ordinance under review here, which impairs "the flow of truthful and legitimate commercial information" is constitutionally infirm.
28
Reversed.
29
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
1
Respondents report that according to a deed on file in Burlington County, N. J., petitioner Linmark Associates' property was sold on April 21, 1976, while this case was pending in the Court of Appeals. Brief for Respondents 8 n. 2. This does not moot this case, however, since at least as to petitioner Mellman, the real estate agent, there plainly is an "immediate prospect," Steffel v. Thompson, 415 U.S. 452, 459-460, 94 S.Ct. 1209, 1215-1216, 39 L.Ed.2d 505 (1974), that he will desire to place "For Sale" signs on other property in Willingboro, and thus there remains a controversy "of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).
2
At the beginning of the first hearing, the then Mayor estimated that 1,100 houses are sold each year, a 10% turnover rate. App. in No. 75-1488 (CA3), p. 37a.
3
Another real estate agent reported that on January 7, 1974, in the Twin Hills section of Willingboro, 32 signs were posted among the 920 houses. He further stated that during the preceding year, the highest number of signs in Twin Hills at any one time was 62. Id., at 77a-78a.
At trial, one of respondents' real-estate-agent witnesses testified that he had surveyed the number of signs in August, 1973 and found more than 230; he did not recall, however, how many signs were standing at that time. Id., at 225a.
4
At trial, petitioner Mellman corroborated this figure based on his own business. Id., at 135a.
5
One of the two "surveys" took the form of an effort by citizens in the Rittenhouse Park section of Willingboro to ban "For Sale" signs. That effort attracted the support of 70% of the homeowners in the section.
6
The Court of Appeals did not have the benefit of Virginia Pharmacy Bd. when it issued its decision in this case. To some extent the court anticipated that decision, recognizing that the fact that "a communication is commercial in nature does not ipso facto strip the communication of its First Amendment protections." 535 F.2d 786, 795 (CA3 1976). But the court premised its analysis on a sharp dichotomy between commercial and "pure" or noncommercial speech, id., at 794, and concluded that commercial speech may be restricted if its "impact be found detrimental" by a municipality, and if "the limitation on any pure speech element (is) minimal," id., at 795. After Virginia Pharmacy Bd. it is clear that commercial speech cannot be banned because of an unsubstantiated belief that its impact is "detrimental."
7
Accordingly, we do not decide whether a ban on signs or a limitation on the number of signs could survive constitutional scrutiny if it were unrelated to the suppression of free expression. See Baldwin v. Redwood City, 540 F.2d 1360, 1368-1369 (CA9 1976); cf. Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968), appeal dismissed, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512 (1969).
8
Cf. Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582, 585-586 (DC 1971), summarily aff'd, 405 U.S. 1000, 92 S.Ct. 1289, 31 L.Ed.2d 472 (1972).
9
As the District Court itself observed, its finding concerning the lack of panic selling distinguishes this case from Barrick Realty, Inc. v. City of Gary, 491 F.2d 161 (CA7 1974), in which Gary, Indiana's prohibition on "For Sale" signs was upheld on a record indicating that such signs were causing "whites to move en masse and blacks to replace them." Id., at 163-164. We express no view as to whether Barrick Realty can survive Bigelow and Virginia Pharmacy Bd.
10
While this assumption is certainly plausible, it is also possible that eliminating signs will cause homeowners to turn to other sources for information, so that their awareness of and concern over selling will be unaffected. Indeed, banning signs actually may fuel public anxiety over sales activity by increasing homeowners' dependence on rumor and surmise. See Laska & Hewitt, Are Laws Against "For Sale" Signs Constitutional? Substantive Due Process Revisited, 4 Real Estate L.J. 153, 160-162 (1975) (reporting on a study finding such an adverse effect from a ban on "For Sale" signs).
The fact that sales volume remained unchanged in Willingboro in the first nine months after the ordinance was enacted suggests that it did not affect public concern over selling, if that concern was a significant cause of housing turnover.
| 23
|
431 U.S. 145
97 S.Ct. 1730
52 L.Ed.2d 203
Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Petitioner,v.Barry Warren KIBBE.
No. 75-1906.
Argued March 1, 1977.
Decided May 16, 1977.
Syllabus
Respondent and his codefendant, after robbing an intoxicated man in their car, abandoned him at night on an unlighted rural road where the visibility was obscured by blowing snow. Twenty or thirty minutes later, while helplessly seated in the road, the man was struck and killed by a speeding truck. Respondent and his accomplice were subsequently convicted in a New York trial court of grand larceny, robbery, and second-degree murder. A New York statute provides that a person is guilty of second-degree murder when "(u)nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." Although the element of causation was stressed in the arguments of both defense counsel and the prosecution at the trial, neither party requested an instruction on the meaning of the "thereby causes" language of the statute and none was given. The trial judge, however, did read to the jury the statute and the indictment tracking the statutory language, and advised the jury that all elements of the crime charged must be proved beyond a reasonable doubt and that a "person acts recklessly with respect to a result or to a circumstances described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur." Respondent's conviction was upheld on appeal, the New York Court of Appeals rejecting the argument that the truck driver's conduct constituted an intervening cause that relieved the defendants of criminal responsibility for the victim's death. Respondent then filed a habeas corpus petition in Federal District Court, which refused to review, as not raising a question of constitutional dimension, respondent's attack on the sufficiency of the jury charge. The Court of Appeals reversed, holding, on the authority of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, that since the Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime charged, the failure to instruct the jury on an essential element as complex as the causation issue in this case created an impermissible risk that the jury had not made a finding that the Constitution requires. Held : The trial judge's failure to instruct the jury on the issue of causation was not constitutional error requiring the District Court to grant habeas corpus relief. Pp. 153-157.
(a) The omission of the causation instruction did not create a danger that the jury failed to make an essential factual determination as required by Winship, supra, where there can be no question from the record that the jurors were informed that the issue of causation was an element which required decision, and where they were instructed that all elements of the crime must be proved beyond a reasonable doubt. Pp. 153-154.
(b) The opinion of the New York Court of Appeals makes it clear that an adequate instruction would have told the jury that if the ultimate harm should have been foreseen as being reasonably related to the defendants' conduct, that conduct should be regarded as having caused the victim's death. There is no reason to believe that the jury would have reached a different verdict if such an instruction had been given. By returning a guilty verdict the jury necessarily found, in accordance with the trial court's instruction on recklessness, that respondent was "aware of and consciously disregarded a substantial and unjustifiable risk" that death would occur. This finding logically included a determination that the ultimate harm was foreseeable. Pp. 154-157.
534 F.2d 493, reversed.
Lillian Zeisel Cohen, New York City, for petitioner.
Sheila Ginsberg, New York City, for respondent.
Mr. Justice STEVENS delivered the opinion of the Court.
1
Respondent is in petitioner's custody pursuant to a conviction for second- degree murder. The question presented to us is whether the New York State trial judge's failure to instruct the jury on the issue of causation was constitutional error requiring a Federal District Court to grant habeas corpus relief. Disagreeing with a divided panel of the Court of Appeals for the Second Circuit, we hold that it was not.
2
On the evening of December 30, 1970, respondent and his codefendant encountered a thoroughly intoxicated man named Stafford in a bar in Rochester, N. Y.1 After observing Stafford display at least two $100 bills,2 they decided to rob him and agreed to drive him to a nearby town. While in the car, respondent slapped Stafford several times, took his money, and, in a search for concealed funds, forced Stafford to lower his trousers and remove his boots. They then abandoned him on an unlighted, rural road, still in a state of partial undress, and without his coat or his glasses. The temperature was near zero, visibility was obscured by blowing snow, and snow banks flanked the roadway. The time was between 9:30 and 9:40 p. m.
3
At about 10 p. m., while helplessly seated in a traffic lane about a quarter mile from the nearest lighted building, Stafford was struck by a speeding pickup truck. The driver testified that while he was traveling 50 miles per hour in a 40-mile zone, the first of two approaching cars flashed its lights presumably as a warning which he did not understand. Immediately after the cars passed, the driver saw Stafford sitting in the road with his hands in the air. The driver neither swerved nor braked his vehicle before it hit Stafford. Stafford was pronounced dead upon arrival at the local hospital.
4
Respondent and his accomplice were convicted of grand larceny, robbery, and second-degree murder.3 Only the conviction of murder, as defined in N. Y. Penal Law § 125.25(2) (McKinney 1975), is now challenged. That statute provides that "(a) person is guilty of murder in the second degree" when "(u)nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." (Emphasis added.)
5
Defense counsel argued that it was the negligence of the truckdriver, rather than the defendants' action, that had caused Stafford's death, and that the defendants could not have anticipated the fatal accident.4 On the other hand, the prosecution argued that the death was foreseeable and would not have occurred but for the conduct of the defendants who therefore were the cause of death.5 Neither party requested the trial judge to instruct the jury on the meaning of the statutory requirement that the defendants' conduct "thereby cause(d) the death of another person," and no such instruction was given. The trial judge did, however, read the indictment and the statute to the jury and explained the meaning of some of the statutory language. He advised the jury that a "person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists." App. 89 (emphasis added).
6
The Appellate Division of the New York Supreme Court affirmed respondent's conviction. People v. Kibbe, 41 App.Div.2d 228, 342 N.Y.S.2d 386 (1973). Although respondent did not challenge the sufficiency of the instructions to the jury in that court, Judge Cardamone dissented on the ground that the trial court's charge did not explain the issue of causation or include an adequate discussion of the necessary mental state. That judge expressed the opinion that "the jury, upon proper instruction, could have concluded that the victim's death by an automobile was a remote and intervening cause."6
7
The New York Court of Appeals also affirmed. 35 N.Y.2d 407, 362 N.Y.S.2d 848, 321 N.E.2d 773 (1974). It identified the causation issue as the only serious question raised by the appeal, and then rejected the contention that the conduct of the driver of the pickup truck constituted an intervening cause which relieved the defendants of criminal responsibility for Stafford's death. The court held that it was "not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said beyond a reasonable doubt, as indeed it can be here said, that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused."7 The court refused to consider the adequacy of the charge to the jury because that question had not been raised in the trial court.
8
Respondent then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of New York, relying on 28 U.S.C. § 2254. The District Court held that the respondent's attack on the sufficiency of the charge failed to raise a question of constitutional dimension and that, without more, "the charge is not reviewable in a federal habeas corpus proceeding." App. 21.
9
The Court of Appeals for the Second Circuit reversed, 534 F.2d 493 (1976). In view of the defense strategy which consistently challenged the sufficiency of the proof of causation, the majority held that the failure to make any objection to the jury instructions was not a deliberate bypass precluding federal habeas corpus relief,8 but rather was an "obviously inadvertent" omission. Id., at 497. On the merits, the court held that since the Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime, In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, the failure to instruct the jury on an essential element as complex as the causation issue in this case created an impermissible risk that the jury had not made a finding that the Constitution requires.9
10
Because the Court of Appeals decision appeared to conflict with this Court's holding in Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368, we granted certiorari, 429 U.S. 815, 97 S.Ct. 55, 50 L.Ed.2d 74.
11
Respondent argues that the decision of the Court of Appeals should be affirmed on either of two independent grounds: (1) that the omission of an instruction on causation created the danger that the jurors failed to make an essential factual determination as required by Winship ; or (2) assuming that they did reach the causation question, they did so without adequate guidance and might have rendered a different verdict under proper instructions. A fair evaluation of the omission in the context of the entire record requires rejection of both arguments.10
12
* (1) The Court has held "that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, supra, 397 U.S., at 364, 90 S.Ct., at 1073. One of the facts which the New York statute required the prosecution to prove is that the defendants' conduct caused the death of Stafford. As the New York Court of Appeals held, the evidence was plainly sufficient to prove that fact beyond a reasonable doubt. It is equally clear that the record requires us to conclude that the jury made such a finding.
13
There can be no question about the fact that the jurors were informed that the case included a causation issue that they had to decide. The element of causation was stressed in the arguments of both counsel. The statutory language, which the trial judge read to the jury, expressly refers to the requirement that defendants' conduct "cause(d) the death of another person." The indictment tracks the statutory language; it was read to the jurors and they were given a copy for use during their deliberations. The judge instructed the jury that all elements of the crime must be proved beyond a reasonable doubt. Whether or not the arguments of counsel correctly characterized the law applicable to the causation issue, they surely made it clear to the jury that such an issue had to be decided. It follows that the objection predicated on this Court's holding in Winship is without merit.
II
14
(2) An appraisal of the significance of an error in the instructions to the jury requires a comparison of the instructions which were actually given with those that should have been given. Orderly procedure requires that the respective adversaries' views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error.11 It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.12
15
(3, 4) The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal.13 The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process", Cupp v. Naughten, 414 U.S., at 147, 94 S.Ct., at 400, 38 L.Ed.2d 368, not merely whether "the instruction is undesirable, erroneous, or even 'universally condemned,' " id., at 146, 94 S.Ct., at 400.
16
In this case, the respondent's burden is especially heavy because no erroneous instruction was given; his claim of prejudice is based on the failure to give any explanation beyond the reading of the statutory language itself of the causation element. An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law. Since this omission escaped notice on the record until Judge Cardamone filed his dissenting opinion at the intermediate appellate level, the probability that it substantially affected the jury deliberations seems remote.
17
Because respondent did not submit a draft instruction on the causation issue to the trial judge, and because the New York courts apparently had no previous occasion to construe this aspect of the murder statute, we cannot know with certainty precisely what instruction should have been given as a matter of New York law. We do know that the New York Court of Appeals found no reversible error in this case; and its discussion of the sufficiency of the evidence gives us guidance about the kind of causation instruction that would have been acceptable.
18
(5) The New York Court of Appeals concluded that the evidence of causation was sufficient because it can be said beyond a reasonable doubt that the "ultimate harm" was "something which should have been foreseen as being reasonably related to the acts of the accused." It is not entirely clear whether the court's reference to "ultimate harm" merely required that Stafford's death was foreseeable, or, more narrowly, that his death by a speeding vehicle was foreseeable.14 In either event, the court was satisfied that the "ultimate harm" was one which "should have been foreseen." Thus, an adequate instruction would have told the jury that if the ultimate harm should have been foreseen as being reasonably related to defendants' conduct, that conduct should be regarded as having caused the death of Stafford.
19
The significance of the omission of such an instruction may be evaluated by comparison with the instructions that were given. One of the elements of respondent's offense is that he acted "recklessly," supra, at 148, 149. By returning a guilty verdict, the jury necessarily found, in accordance with its instruction on recklessness, that respondent was "aware of and consciously disregard(ed) a substantial and unjustifiable risk"15 that death would occur. A person who is "aware of and consciously disregards" a substantial risk must also foresee the ultimate harm that the risk entails. Thus, the jury's determination that the respondent acted recklessly necessarily included a determination that the ultimate harm was foreseeable to him.
20
In a strict sense, an additional instruction on foreseeability would not have been cumulative because it would have related to an element of the offense not specifically covered in the instructions given. But since it is logical to assume that the jurors would have responded to an instruction on causation consistently with their determination of the issues that were comprehensively explained, it is equally logical to conclude that such an instruction would not have affected their verdict.16 Accordingly, we reject the suggestion that the omission of more complete instructions on the causation issue "so infected the entire trial that the resulting conviction violated due process." Even if we were to make the unlikely assumption that the jury might have reached a different verdict pursuant to an additional instruction, that possibility is too speculative to justify the conclusion that constitutional error was committed.
21
The judgment is reversed.
22
It is so ordered.
23
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
24
Mr. Chief Justice BURGER, concurring in the judgment.
25
I concur in the judgment, but I find it unnecessary to resolve the question of New York criminal law considered by the Court, at 155-157, ante. In my view, the federal court was precluded from granting respondent's petition for collateral relief under 28 U.S.C. § 2254 because he failed to object to the jury instructions at the time they were given. By that failure he waived any claim of constitutional error. This was precisely why the New York Court of Appeals refused to consider respondent's belated claim. Cf. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).
26
This Court has held that under certain circumstances a defendant's failure to comply with state procedural requirements will not be deemed a waiver of federal constitutional rights, unless it is shown that such bypass was the result of a deliberate tactical decision. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). These cases, however, involved post -trial omissions of a technical nature which would be unlikely to jeopardize substantial state interests. Mid -trial omissions such as occurred in this case, on the other hand, are substantially different. "It is one thing to fail to utilize the (state) appeal process to cure a defect which already inheres in a judgment of conviction, but it is quite another to forgo making an objection or exception which might prevent the error from ever occurring." Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 n. (1975) (REHNQUIST, J., concurring);* see Estelle v. Williams, 425 U.S. 501, 513-514, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126 (1976) (POWELL, J., concurring). Thus, by failing to object to the jury charge, respondent injected into the trial process the very type of error which the objection requirement was designed to avoid. Federal courts may not overlook such failure on collateral attack.
27
The "deliberate bypass" doctrine of Fay v. Noia, supra, should not be extended to midtrial procedural omissions which impair substantial state interests. I would simply hold that the United States District Court was barred from examining the substance of respondent's constitutional claim, and rest our reversal of the Court of Appeals on that ground.
1
A pathologist testified that the alcohol content in Stafford's blood was indicative of a "very heavy degree of intoxication." App. 58.
2
Tr. 723.
3
Respondent was sentenced to concurrent terms of 15 years to life on the murder conviction; 5-15 years on the robbery conviction; and an indeterminate term of up to four years on the grand larceny conviction.
4
"Let's look at this indictment. Count 1 says and I will read the important part. That the defendant, 'Felon(i)ously and under circumstances evincing a depraved indifference to human life recklessly engaged in conduct which created a grave risk of death to another person, to wit, George Stafford and thereby caused the death of George Stafford.' So, you can see by the accent that I put on reaching that, the elements of this particular crime, and which must be proven beyond a reasonable doubt.
". . . (Y)ou are going to have to honestly come to the conclusion that here is three people, all three drinking, and that these two, or at least my client were in a position to perceive this grave risk, be aware of it and disregard it. Perceive that Mr. Stafford would sit in the middle of the northbound lane, that a motorist would come by who was distracted by flashing lights in the opposite lane, who then froze at the wheel, who then didn't swerve, didn't brake, and who was violating the law by speeding, and to make matters worse, he had at that particular time, because of what the situation was, he had low beams on, that is a lot of anticipation. That is a lot of looking forward. Are you supposed to anticipate that somebody is going to break the law when you move or do something? I think that is a reasonable doubt." App. 68.
5
"As I mentioned not only does the first count contain reference to and require proof of a depraved indifference to a human life, it proves that the defendant recklessly engaged in conduct which created a risk of death in that they caused the death of George Stafford. Now, I very well know, members of the jury, you know, that quite obviously the acts of both of these defendants were not the only the direct or the most preceding cause of his death. If I walked with one of you downtown, you know, and we went across one of the bridges and you couldn't swim and I pushed you over and you drowned because you can't swim, I suppose you can say, well, you drowned because you couldn't swim. But of course, the fact is that I pushed you over. The same thing here. Sure, the death, the most immediate, the most preceding, the most direct cause of Mr. Stafford's death was the motor vehicle. . . . But how did he get there? Or to put it differently, would this man be dead had it not been for the acts of these two defendants? And I submit to you, members of the jury, that the acts of these two defendants did indeed cause the death of Mr. Stafford. He didn't walk out there on East River Road. He was driven out there. His glasses were taken and his identification was taken and his pants were around his ankles." Id., at 75-76.
6
41 App.Div., at 231, 342 N.Y.S.2d, at 390. He added:
"There are no statutory provisions dealing with intervening causes nor is civil case law relevant in this context. The issue of causation should have been submitted to the jury in order for it to decide whether it would be unjust to hold these appellants liable as murderers for the chain of events which actually occurred. Such an approach is suggested in the American Law Institute Model Penal Code (see Comment, § 2.03, pp. 133, 134 of Tentative Draft No. 4)." Id., at 231-232, 342 N.Y.S.2d, at 390.
The dissent did not cite any New York authority describing the causation instruction that should have been given.
7
35 N.Y.2d, at 412, 362 N.Y.S.2d, at 851-852, 321 N.E.2d, at 776. The New York court added:
"We subscribe to the requirement that the defendants' actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, and recognize, of course, that this standard is greater than that required to serve as a basis for tort liability. Applying these criteria to the defendants' actions, we conclude that their activities on the evening of December 30, 1970 were a sufficiently direct cause of the death of George Stafford so as to warrant the imposition of criminal sanctions. In engaging in what may properly be described as a despicable course of action, Kibbe and Krall left a helplessly intoxicated man without his eyeglasses in a position from which, because of these attending circumstances, he could not extricate himself and whose condition was such that he could not even protect himself from the elements. The defendants do not dispute the fact that their conduct evinced a depraved indifference to human life which created a grave risk of death, but rather they argue that it was just as likely that Stafford would be miraculously rescued by a good (S)amaritan. We cannot accept such an argument. There can be little doubt but that Stafford would have frozen to death in his state of undress had he remained on the shoulder of the road. The only alternative left to him was the highway, which in his condition, for one reason or another, clearly foreboded the probability of his resulting death." Id., at 413, 362 N.Y.S.2d, at 852, 321 N.E.2d at 776.
8
Cf. Humphrey v. Cady, 405 U.S. 504, 517, 92 S.Ct. 1048, 1056, 31 L.Ed.2d 394; Fay v. Noia, 372 U.S. 391, 427-428, 438-439, 83 S.Ct. 822, 842-843, 848-849, 9 L.Ed.2d 837.
9
"The omission of any definition of causation, however, permitted the jury to conclude that the issue was not before them or that causation could be inferred merely from the fact that Stafford's death succeeded his abandonment by Kibbe and Krall.
". . . The possibility that jurors, as laymen, may misconstrue the evidence before them makes mandatory in every case instruction as to the legal standards they must apply. . . . Error in the omission of an instruction is compounded where the legal standard is complex and requires that fine distinctions be made. That is most assuredly the situation in this case. It has been held that where death is produced by an intervening force, such as Blake's operation of his truck, the liability of one who put an antecedent force into action will depend on the difficult determination of whether the intervening force was a sufficiently independent or supervening cause of death. See W. LaFave & A. Scott, Criminal Law 257-263 (1972) (collecting cases). The few cases that provide similar factual circumstances suggest that the controlling questions are whether the ultimate result was foreseeable to the original actor and whether the victim failed to do something easily within his grasp that would have extricated him from danger." 534 F.2d, at 498-499 (footnotes omitted).
In dissent, Judge Mansfield reasoned that the arguments of counsel, the reading of the statutory definition of the crime, and the general instructions made it clear to the jury that they had to find beyond a reasonable doubt that defendants' conduct was a direct cause of Stafford's death and that the death was not attributable solely to the truckdriver. Even though instructions on intervening cause might have been helpful, Judge Mansfield concluded that the omission was not constitutional error.
10
"In determining the effect of this instruction on the validity of respondent's (state) conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926). While this does not mean that an instruction by itself may never rise to the level of constitutional error, see Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction." Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400.
11
Allis v. United States, 155 U.S. 117, 122-123, 15 S.Ct. 36, 38, 39 L.Ed. 91; Harvey v. Tyler, 2 Wall. 328, 339, 17 L.Ed. 871; see, e. g., Lopez v. United States, 373 U.S. 427, 436, 83 S.Ct. 1381, 1386, 10 L.Ed.2d 462.
12
In Namet v. United States, 373 U.S. 179, 190, 83 S.Ct. 1151, 1156, 10 L.Ed.2d 278, the Court characterized appellate consideration of a trial court error which was not obviously prejudicial and which the defense did not mention during the trial as "extravagant protection." See Boyd v. United States, 271 U.S. 104, 108, 46 S.Ct. 442, 443, 70 L.Ed. 857.
13
The strong interest in preserving the finality of judgments, see, e. g., Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (Powell, J., concurring); Schneckloth v. Bustamonte, 412 U.S. 218, 256-266, 93 S.Ct. 2041, 2062-2067, 36 L.Ed.2d 854 (POWELL, J., concurring), as well as the interest in orderly trial procedure, must be overcome before collateral relief can be justified. For a collateral attack may be made many years after the conviction when it may be impossible, as a practical matter, to conduct a retrial.
14
35 N.Y.2d, at 412-413, 362 N.Y.S.2d, at 851-852, 321 N.E.2d, at 776. The passage of the opinion quoted in n. 7, supra, emphasizes the obvious risk of death by freezing, suggesting that defendants need not have foreseen the precise manner in which the death did occur.
15
Supra, at 149. In charging the jury on recklessness the trial judge quoted the statutory definition of that term in N.Y. Penal Law § 15.05(3) (McKinney 1975).
16
In fact, it is not unlikely that a complete instruction on the causation issue would actually have been favorable to the prosecution. For example, an instruction might have been patterned after the following example given in W. LaFave & A. Scott, Criminal Law 260 (1972):
"A, with intent to kill B, only wounds B, leaving him lying unconscious in the unlighted road on a dark night, and then C, driving along the road, runs over and kills B. Here C's act is a matter of coincidence rather than a response to what A has done, and thus the question is whether the subsequent events were foreseeable, as they undoubtedly were in the above illustration."
Such an instruction would probably have been more favorable to the prosecution than the instruction on recklessness which the court actually gave.
*
This is not a case such as Mullaney, where the State's highest court ruled on the defendant's claim even though he failed to rise the issue at trial. Rather, as the Court notes, ante, at pp. 150, the New York Court of Appeals here expressly refused to rule on the adequacy of the charge because respondent failed to object in the trial court.
| 01
|
431 U.S. 169
97 S.Ct. 2162
52 L.Ed.2d 216
Larry PRESSLER, Member, United States House of Representativesv.W. M. BLUMENTHAL, Secretary of the Treasury, et al
No. 76-1005
Supreme Court of the United States
May 16, 1977
May 16, 1977.
PER CURIAM.
1
The motion of We the People for leave to file a brief, as amicus curiae, is granted. The motion of James W. Jeffords, et al., for leave to file a brief, as amici curiae, is granted.
2
Appellant challenges the operation of certain provisions of the Postal Revenue and Federal Salary Act of 1967, 2 U.S.C. §§ 351-361, and of the 1975 Executive Salary Cost-of-Living Adjustment Act, 2 U.S.C. § 31 (1970 ed., Supp. V), relating to increases in salaries paid members of Congress. He asserts that the operation of these Acts violates Art. I, § 1, and § 6, cl. 1 (the Ascertainment Clause), of the Constitution.
3
On April 4, 1977, Congress passed an amendment to the Postal Revenue and Federal Salary Act. On April 12, the President signed that amendment into law. Pub.L. 95-19, 91 Stat. 45.
4
It appearing that the amendment to the Postal Revenue and Federal Salary Act will alter materially the scope and perhaps the nature of appellant's suit, the judgment of the District Court is vacated, and the case is remanded to that court for further consideration in the light of the new legislation.
5
It is so ordered.
6
Mr. Justice STEVENS would affirm the judgment dismissing the complaint.
| 89
|
431 U.S. 171
97 S.Ct. 1739
52 L.Ed.2d 219
John D. ASHCROFT, Attorney General of Missouriv.Robert Dean MATTIS.
No. 76-1179.
Decided May 16, 1977.
Rehearing Denied June 27, 1977. See 433 U.S. 915, 97 S.Ct. 2990.
PER CURIAM.
1
Appellee's 18-year-old son was shot and killed by police while attempting to escape arrest. Appellee filed suit under 42 U.S.C. § 1983 against the police officers in the United States District Court for the Eastern District of Missouri. He sought to recover damages, and also to obtain a declaratory judgment that the Missouri statutes authorizing the police action were unconstitutional.1 The District Court held that a defense of good faith had been established, and denied both forms of relief. No appeal was taken from the denial of damages, but appellee did seek review of the denial of declaratory relief. The Eighth Circuit held that declaratory relief was available and remanded for consideration of the merits of the constitutional issue. Mattis v. Schnarr, 502 F.2d 588 (1974).
2
(1-3) On remand, appellee filed an amended complaint, in which he made no claim for damages. The Missouri Attorney General was allowed to intervene in defense of the statutes, and the case was then submitted on stipulated facts. The District Court upheld the statutes, Mattis v. Schnarr, 404 F.Supp. 643 (1975), but was reversed by a divided Court of Appeals, sitting en banc, 8 Cir., 547 F.2d 1007 (1976). The Attorney General brought an appeal under 28 U.S.C. § 1254(2) from the holding that the state statutes were unconstitutional.
3
Although we are urged to consider the merits of the Court of Appeals' holding, we are unable to do so, because this suit does not now present a live "case or controversy." This suit was brought to determine the police officers' liability for the death of appellee's son. That issue has been decided, and there is no longer any possible basis for a damages claim. Nor is there any possible basis for a declaratory judgment. For a declaratory judgment to issue, there must be a dispute which "calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 242, 57 S.Ct. 461, 465, 81 L.Ed. 617 (1937). See also Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). Here, the District Court was asked to answer the hypothetical question whether the defendants would have been liable apart from their defense of good faith. No "present right" of appellee was at stake. Indeed, appellee's primary claim of a present interest in the controversy is that he will obtain emotional satisfaction from a ruling that his son's death was wrongful.2 Appellee's Motion to Affirm 5-6, n. 1. Emotional involvement is a lawsuit is not enough to meet the case-or-controversy requirement; were the rule otherwise, few cases could ever become moot.
4
The judgment of the Court of Appeals is vacated, and the case is remanded with instructions to direct the District Court to dismiss the second amended complaint.
5
It is so ordered.
1
These statutes permit police to use deadly force in apprehending a person who has committed a felony, following notice of the intent to arrest. Mo.Rev.Stat. §§ 559.040 and 544.190 (1969); see Mattis v. Schnarr, 502 F.2d 588, 591, and n. 4 (CA8 1974).
2
The second amended complaint also alleges that appellee has another son who "if ever arrested or brought under an attempt at arrest on suspicion of a felony, might flee or give the appearance of fleeing, and would therefore be in danger of being killed by these defendants or other police officers . . . ." 3 App. in Mattis v. Schnarr, No. 75-1849 (CA8), p. 5 (emphasis added). Such speculation is insufficient to establish the existence of a present, live controversy.
| 89
|
431 U.S. 159
97 S.Ct. 2162
52 L.Ed.2d 223
E. C. CHAPPELLE, Jr., appellant,v.The GREATER BATON ROUGE AIRPORT DISTRICT et al
No. 76-352
Supreme Court of the United States
May 16, 1977
Rehearing Denied June 27, 1977.
See 433 U.S. 915, 97 S.Ct. 2990.
May 16, 1977.
PER CURIAM.
1
The judgment is reversed. Turner v. Fouche, 396 U.S. 346, 361-364, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970).
2
Opinion on remand, 357 So.2d 824.
3
Mr. Justice REHNQUIST, dissenting.
4
Appellant, E. C. Chappelle, Jr., wished to serve, upon appointment, as a commissioner on the Greater Baton Rouge Airport Commission. He, however, was deemed not qualified since, at the time of his appointment, he owned no "property assessed in East Baton Rouge Parish," as required by Louisiana Act 151 of 1969. The sole requirement is that he own property, whether real or personal, that is assessed in that parish. We sit to judge the constitutionality, not the wisdom, of this restriction. I am unable to agree that the Constitution, or prior cases from this Court, require today's declaration of unconstitutionality.
5
This Court has regularly sustained the imposition of city or county residency requirements on municipal employees. McCarthy v. Philadelphia Civil Serv. Comm'n, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976); Detroit Police Officers Assn. v. Detroit, 405 U.S. 950, 96 S.Ct. 1173, 31 L.Ed.2d 227 (1972); see also Bute v. Quinn, 535 F.2d 1285 (C.A.7), cert. denied, 429 U.S. 1027, 97 S.Ct. 651, 50 L.Ed.2d 630 (1976). It is dubious at best whether the requirement that a public officeholder own any assessable property within a parish is any more burdensome, or any less rational, than a requirement that he and his family live in that parish.
6
This Court has also sustained durational residency requirements of five and seven years for candidates for the office of state governor and senator, Kanapaux v. Ellisor, 419 U.S. 891, 95 S.Ct. 169, 42 L.Ed. 136 (1974); Sununu v. Stark, 420 U.S. 958, 95 S.Ct. 1346, 43 L.Ed.2d 434 (1975). If a State can impose a five-year residency requirement on its candidates for its highest political office, it should be able to impose a minimal locational property requirement on persons seeking office in this airport district.
The Louisiana Court of Appeal concluded:
7
"In enacting Act 151 of 1969, the legislature sought to insure that the members of the commission would have a substantial interest in performing their duties effectively and conscientiously. The legislature could have concluded reasonably that property owners of East Baton Rouge Parish would have that interest." App. 22-23.
8
Surely it was as reasonable to conclude so in this case as it is in situations involving residency, or durational residency, requirements. Since I believe today's opinion is inconsistent with these cases, and since, in light of these later cases, I would not extend Turner v. Fouche, 396 U.S. 346, 361-364, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), I respectfully dissent.
| 12
|
431 U.S. 161
97 S.Ct. 2166
52 L.Ed.2d 225
State of TEXASv.State of LOUISIANA
No. 36
Supreme Court of the United States
May 16, 1977
1
On Bill of Compl-
2
aint DECREE
3
For the purpose of giving effect to the opinion of this Court announced on June 14, 1976, 426 U.S. 465, 96 S.Ct. 2155, 48 L.Ed.2d 775:
4
It Is Ordered, Adjudged and Decreed As Follows:
5
1. That the extension of the boundary southerly from the point where the line forming the boundary between Texas and Louisiana southerly from the Arkansas boundary, intersects the geographical middle of the Sabine River (Latitude 31o 59'56.225 North, Longitude 94o 02'33.105 West, said point being taken from the United States Geological Survey Quadrangle Center, Tex.-La. 1958 Edition) to the mid-point between the gulfward extension of the Sabine Pass jetties Latitude 29o 38'37.329 North, Longitude 93o 49'30.940 West hereby is established.
6
Said boundary commences at Latitude 31o 59'56.225 North and Longitude 94o 02'33.105 West, thence proceeding in a southerly direction along the Sabine River using the federal line as shown for the boundary on the United States Geological Survey Quadrangle Center, Tex.-La., 1958 Edition (photorevised 1969) and signed by Hatley N. Harrison, Jr., for Louisiana on February 20, 1974, and by H. H. Forbes, Jr., for Texas on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-1.
7
Thence, on the United States Geological Survey Quadrangle Logansport, La.-Tex. Edition of 1956 (photorevised 1969) and signed by Hatley N. Harrison, Jr., for Louisiana on February 20, 1974, and Herman H. Forbes, Jr. for Texas on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-2, using the federal line as shown along the River as the boundary except for the alignments shown in red. These red alignments denote where the boundary follows old oxbows that formerly were the Sabine River and are located in the vicinity of:
8
LATITUDE NORTH LONGITUDE WEST
31x54'36" 93x55'51"
31x53'45" 93x55'54"
31x53'34" 93x54'02"
31x50'20" 93x52'38"
31x49'22" 93x52'09"
31x47'27" 93x50'05"
31x47'04" 93x50'05"
31x46'16" 93x49'30"
9
Thence, on the United States Geological Survey Quadrangle Patroon, Tex.-La., Edition of 1956 (photorevised 1969) and signed by Hatley N. Harrison, Jr., for Louisiana on February 20, 1974, and by Herman H. Forbes, Jr. for Texas on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-3, using the federal line as shown along the Sabine River as the boundary except for the former alignments shown in red. These are located in the vicinity of:
10
LATITUDE NORTH LONGITUDE WEST
31x42'06" 93x48'50"
31x41'12" 93x48'37"
31x36'52" 93x49'33"
31x31'44" 93x45'19"
11
Thence, on the United States Geological Survey Quadrangle Zwolle, La.-Tex., Edition of 1957 (photorevised 1969) and signed by Hatley N. Harrison, Jr. for Louisiana on February 20, 1974, and by Herman H. Forbes, Jr. for Texas on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-4, using the federal line as shown along the Sabine River as the boundary except for the former alignment shown in red. It is located in the vicinity of Latitude 31o 31'50 North and Longitude 93o 45'00 West.
12
Thence, on the United States Geological Survey Quadrangle Negreet, La.-Tex., Ed ition of 1954 (photorevised 1969) and signed by Hatley N. Harrison, Jr. for Lou isiana, on February 20, 1974 and by Herman H. Forbes, Jr. for Texas on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-5, using the federal line as shown along the Sabine River as the boundary.
13
Thence, on the United States Geological Survey Quadrangle Weirgate, Tex.-La., Edition of 1954 (photorevised 1969) and signed by Hatley N. Harrison, Jr. for Louisiana on March 29, 1974, and by Herman H. Forbes, Jr. for Texas on April 5, 1974, which is in evidence in this case as Texas Exhibit AAA-6, using the federal line as shown along the Sabine River as the boundary except for the former alignments shown in red. These are located in the vicinity of:
14
LATITUDE NORTH LONGITUDE WEST
31x11'12" 93x33'10"
31x04'16" 93x32'03"
31x00'14" 93x34'10"
15
Thence, on the United States Geological Survey Quadrangle Merryville, Tex.-La., Edition of 1959 signed by Hatley N. Harrison, Jr. for Louisiana on February 20, 1974, and by Herman H. Forbes, Jr. for Texas, on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-7, using the federal line as shown along the Sabine River as the boundary except for the former alignments shown in red. These are located in the vicinity of:
16
LATITUDE NORTH LONGITUDE WEST
30x50'39" 93x33'37"
30x45'18" 93x36'23"
17
Thence, on the United States Geological Survey Quadrangle Bon Weir, La.-Tex., Edition of 1959 signed by Hatley N. Harrison, Jr. for Louisiana on February 20, 1974, and by Herman H. Forbes, Jr. for Texas on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-8, using the federal line as shown along the Sabine River as the boundary except for the former alignments shown in red. These are located in the vicinity of:
18
LATITUDE NORTH LONGITUDE WEST
30x43'27" 93x36'47"
30x38'14" 93x40'40"
30x34'49" 93x42'42"
30x34'40" 93x43'13"
30x30'38" 93x42'28"
19
Thence, on the United States Geological Survey Quadrangle Starks, La.-Tex., Edition of 1959 (photorevised 1967) and the United States Geological Survey Quadrangle Bessmay, Tex.-La., Edition of 1955, each signed by Hatley N. Harrison, Jr., for Louisiana on February 20, 1974, and by Herman H. Forbes, Jr. for Texas on February 20, 1974, which are in evidence in this case as Texas Exhibits AAA-9 and AAA-10, using the federal line as shown along the Sabine River as the boundary except for the former alignments shown in red. These are located in the vicinity of:
20
LATITUDE NORTH LONGITUDE WEST
30x23'40" 93x44'36"
30x19'17" 93x45'21"
30x18'40" 93x44'37"
30x16'58" 93x42'12"
30x15'25" 93x42'08"
21
Thence, on the United States Geological Survey Quadrangle Orange, La.-Tex., Edition of 1960 signed by Hatley N. Harrison, Jr. for Louisiana, on March 29, 1974, and by Herman H. Forbes, Jr. for Texas, on May 20, 1974, which is in evidence in this case as Texas Exhibit AAA-11, using the federal line as shown along the Sabine River as the boundary except for the former alignments shown in red. These are located in the vicinity of:
22
LATITUDE NORTH LONGITUDE WEST
30x12'11" 93x42'46"
30x11'38" 93x42'33"
30x06'04" 93x42'37"
30x05'09" 93x43'49"
23
Thence, on the United States Geological Survey Quadrangle Orangefield, Tex.-La., Edition of 1957 signed by Hatley N. Harrison, Jr. for Louisiana, on February 20, 1974, and by Herman H. Forbes, Jr. for Texas, on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-12, using the federal line shown along the Sabine River as the boundary to a point on the geographic middle of the Sabine River whose position is Latitude 30o 00'00.000 North and Longitude 93o 46'07.952 West.
24
And thence, as shown on Exhibit 13, which is in evidence herein, the boundary from the point last mentioned through Middle Pass at the mouth of the Sabine River and through Sabine Lake and Pass to the seaward end of the jetties is defined by straight lines between points in either Louisiana (Lambert) Coordinate System, South Zone, or Texas (Lambert) Coordinate System, South Central Zone, whose geographic positions are as follows:
25
Latitude North Longitude West Location
COMMENCE AT 30°00'00.000" 93°46'07.952" River
THROUGH 29°59'51.826" 93°46'09.068" Head of Pass
THROUGH 29°59'47.316" 93°46'13.110" River
THROUGH 29°59'43.790" 93°46'18.996" River
THROUGH 29°59'42.357" 93°46'24.193" River
THROUGH 29°59'41.976" 93°46'31.407" River
THROUGH 29°59'41.857" 93°46'36.751" River
THROUGH 29°59'41.098" 93°46'41.339" River
THROUGH 29°59'36.127" 93°46'53.104" River
THROUGH 29°59'34.754" 93°46'57.677" Head of Pass
THROUGH 29°59'13.842" 93°47'27.465" Middle Pass
THROUGH 29°59'00.673" 93°47'36.676" Middle Pass
THROUGH 29°58'50.683" 93°47'43.561" Middle Pass
THROUGH 29°58'43.739" 93°47'48.469" Upper Sabine Lake
THROUGH 29°58'37.530" 93°47'54.478" Upper Sabine Lake
THROUGH 29°58'30.922" 93°48'09.976" Upper Sabine Lake
THROUGH 29°58'03.916" 93°48'20.679" Upper Sabine Lake
THROUGH 29°56'49.422" 93°48'31.283" Upper Sabine Lake
THROUGH 29°56'23.803" 93°48'37.697" Upper Sabine Lake
THROUGH 29°56'19.089" 93°48'43.491" Upper Sabine Lake
THROUGH 29°56'11.739" 93°48'47.345" Upper Sabine Lake
Page 166
26
THROUGH 29°55'57.322" 93°48'50.454" Upper Sabine Lake
THROUGH 29°55'03.827" 93°49'04.810" Upper Sabine Lake
THROUGH 29°54'36.973" 93°49'16.302" Upper Sabine Lake
THROUGH 29°54'04.585" 93°49'37.656" Upper Sabine Lake
THROUGH 29°53'32.579" 92°50'03.845" Upper Sabine Lake
THROUGH 29°52'56.560" 93°50'21.747" Upper Sabine Lake
THROUGH 29°52'39.770" 92°50'35.039" Upper Sabine Lake
THROUGH 29°52'25.145" 93°51'09.699" Middle of Sabine Lake
THROUGH 29°51'50.473" 93°52'07.103" Lower Sabine Lake
THROUGH 29°51'32.542" 93°52'28.004" Lower Sabine Lake
THROUGH 29°51'15.878" 93°52'57.568" Lower Sabine Lake
THROUGH 29°51'05.200" 93°53'19.673" Lower Sabine Lake
THROUGH 29°50'54.303" 93°53'35.182" Lower Sabine Lake
THROUGH 29°50'18.169" 93°54'20.311" Lower Sabine Lake
THROUGH 29°49'49.772" 93°54'49.448" Lower Sabine Lake
THROUGH 29°49'44.849" 93°54'58.065" Lower Sabine Lake
THROUGH 29°49'37.618" 93°55'05.771" Lower Sabine Lake
THROUGH 29°49'20.303" 93°55'20.142" Lower Sabine Lake
THROUGH 29°48'42.959" 93°55'35.809" Lower Sabine Lake
THROUGH 29°48'18.451" 92°55'40.759" Lower Sabine Lake
THROUGH 29°47'36.545" 92°55'39.194" Lower Sabine Lake
THROUGH 29°47'15.758" 93°55'30.254" Lower Sabine Lake
THROUGH 29°47'05.436" 93°55'18.919" Lower Sabine Lake
THROUGH 29°46'58.740" 93°55'01.889" Lower Sabine Lake
THROUGH 29°46'48.210" 93°54'46.996" Lower Sabine Lake
THROUGH 29°46'36.049" 93°54'25.832" Lower Sabine Lake
THROUGH 29°46'28.073" 93°54'13.425" Lower Sabine Lake
THROUGH 29°46'18.585" 93°53'57.291" Lower Sabine Lake
THROUGH 29°46'06.942" 93°53'45.018" Sabine Pass
THROUGH 29°45'54.345" 93°53'30.849" Sabine Pass
THROUGH 29°45'49.978" 93°53'28.808" Sabine Pass
THROUGH 29°45'38.577" 93°53'26.928" Sabine Pass
THROUGH 29°45'18.638" 93°53'33.851" Sabine Pass
THROUGH 29°45'05.648" 93°53'32.213" Sabine Pass
THROUGH 29°44'54.133" 93°53'31.124" Sabine Pass
THROUGH 29°44'43.478" 93°53'28.071" Sabine Pass
THROUGH 29°44'35.209" 93°53'18.953" Sabine Pass
THROUGH 29°44'31.543" 93°53'11.427" Sabine Pass
THROUGH 29°44'27.961" 93°53'02.088" Sabine Pass
THROUGH 29°44'22.581" 93°52'40.847" Sabine Pass
Page 167
27
THROUGH 29°44'11.018" 93°52'03.826" Sabine Pass
THROUGH 29°44'04.304" 93°51'54.092" Sabine Pass
THROUGH 29°43'54.534" 93°51'48.229" Sabine Pass
THROUGH 29°43'37.354" 93°51'40.499" Sabine Pass
THROUGH 29°43'32.000" 93°51'35.690" Sabine Pass
THROUGH 29°43'16.198" 93°51'23.209" Sabine Pass
THROUGH 29°43'07.451" 93°51'24.917" Sabine Pass
THROUGH 29°42'58.535" 93°51'25.146" Sabine Pass
THROUGH 29°42'52.596" 93°51'22.444" Sabine Pass
THROUGH 29°42'37.071" 93°51'08.441" Sabine Pass
THROUGH 29°42'25.303" 93°51'02.416" Sabine Pass
THROUGH 29°42'17.991" 93°50'56.448" Sabine Pass
THROUGH 29°42'11.305" 93°50'52.934" Sabine Pass
THROUGH 29°41'57.311" 93°50'47.841" Head of Jetties
THROUGH 29°41'15.323" 93°50'11.722" Jetties
TO 29°38'37.329" 93°49'30.940" End of Jetties
28
2. That the offshore lateral boundary between the States of Texas and Louisiana seaward from the point Latitude 29o 38'37.329 North, Longitude 93o 49'30.940 West (end of jetties) is a line running South-Southeasterly from said point on a constant bearing of South 13o 44'45.8 east true to the seaward limit of Louisiana's Submerged Lands Act grant. Texas' historic boundary then continues offshore on the same bearing to the point Latitude 29o 32'06.784 North, Longitude 93o 47'41.699 West. This offshore lateral boundary and the Texas historical boundary are shown upon Exhibit 14 which is in evidence in this case.
29
3. That the United States holds no title to or interest in any island in the west half of the Sabine River by virtue of that island's continuous existence since 1848, when the western half of that River was part of the territory of the United States, but not part of Texas. Louisiana does not hold title to or interest in any island in the west half of the Sabine River. The United States and Texas do not hold title to or interest in any island in the east half of the Sabine River.
30
4. That Exhibits 1-14, in evidence herein and above mentioned, be certified by the Special Master as delineating the boundary between the State of Texas and the State of Louisiana, from Latitude 32o North, as defined herein, to the seaward limits of Louisiana's Submerged Land Act grant, and the seaward limits of Texas' historical boundary, as defined herein, and that the State of Louisiana be directed to deposit a copy of these maps, so certified by the Special Master, along with a certified copy of this decree, with the Register of the State Land Office for the State of Louisiana, and that the State of Texas be directed to deposit a set of these maps, so certified by the Special Master, along with a certified copy of this decree, with the Commissioner of the General Land Office of the State of Texas.
31
5. That the costs be taxed to the parties in accordance with their contribution to the fund established by the Special Master, and that no costs be taxed for the services of the Special Master.
32
6. That any unexpended funds contributed by the parties to the Special Master for necessary expenses be returned to the parties.
33
7. That upon such return of funds the Honorable Robert Van Pelt, the Special Master appointed in this cause, will have completed his duties, and is thereupon discharged.
| 1011
|
431 U.S. 105
97 S.Ct. 1723
52 L.Ed.2d 172
Alan J. DIXON, Secretary of State of Illinois, Appellant,v.Dennis N. LOVE, etc.
No. 75-1513.
Argued March 1-2, 1977.
Decided May 16, 1977.
Syllabus
The Illinois Driver Licensing Law authorizes the Secretary of State of Illinois to suspend or revoke a driver's license without preliminary hearing upon a showing by his records or other sufficient evidence that the driver's conduct falls into any of 18 enumerated categories, one of which is that the driver has been repeatedly convicted of offenses against traffic laws to a degree indicating "lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws and the safety of other persons upon the highway." (§ 6-206(a)(3)). Pursuant to this provision the Secretary issued a regulation requiring revocation in the event a driver's license is otherwise suspended three times within a 10-year period. Under the statutory scheme the Secretary must provide immediate written notice of a discretionary suspension or revocation and within 20 days of his receiving a written request from the licensee must schedule a full evidentiary hearing for a date "as early as practical," and his final decision is subject to judicial review. After the license of appellee, a truckdriver, became subject to suspension under another section of the statute, the Secretary ordered the license revoked under § 6-206(a)(3) and the corresponding rule. Without requesting an administrative hearing, appellee brought this action challenging the constitutionality of § 6-206(a)(3). A three-judge District Court, relying on Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, granted appellee relief on the ground that a license cannot constitutionally be revoked under the challenged statute until after a hearing is held to determine whether the licensee meets the statutory criteria. Held : The Illinois statute, as implemented by the Secretary's regulations, is constitutionally adequate under the Due Process Clause of the Fourteenth Amendment, as analyzed in Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18. Pp. 112-116.
(a) The nature of the private interest involved here (the granted license to operate a motor vehicle) is not so great as to require a departure from "the ordinary principle . . . that something less than an evidentiary hearing is sufficient prior to adverse administrative action," Eldridge, supra, at 343, 96 S.Ct. at 907, particularly in light of statutory provisions for hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges. Pp. 113.
(b) The risk of an erroneous deprivation absent a prior hearing is not great and additional procedures would not significantly reduce the number of erroneous deprivations. Here the Secretary's regulations make suspension and revocation decisions largely automatic, and appellee is asserting the right to appear at a prerevocation hearing merely to argue for leniency. Pp. 113-114.
(c) The requirement of a pretermination hearing in every case would impede the public interest of administrative efficiency as well as highway safety, which is promoted by the prompt removal of hazardous drivers. Bell v. Burson, supra, distinguished. Pp. 114-115.
Reversed.
James O. Latturner, Chicago, Ill., for appellee.
Patricia Rosen, Chicago, Ill., for appellant.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The issue in this case is whether Illinois has provided constitutionally adequate procedures for suspending or revoking the license of a driver who repeatedly has been convicted of traffic offenses. The statute and administrative regulations provide for an initial summary decision based on official records, with a full administrative hearing available only after the suspension or revocation has taken effect.
2
* The case centers on § 6-206 of the Illinois Driver Licensing Law (c. 6 of the Illinois Vehicle Code). The section is entitled "Discretionary authority to suspend or revoke license or permit." It empowers the Secretary of State to act "without preliminary hearing upon a showing by his records or other sufficient evidence" that a driver's conduct falls into any one of 18 enumerated categories. Ill.Rev.Stat., c. 951/2, § 6-206(a) (1975). Pursuant to his rulemaking authority under this law, § 6-211(a),1 the Secretary has adopted administrative regulations that further define the bases and procedures for discretionary suspensions. These regulations generally provide for an initial summary determination based on the individual's driving record.2 The Secretary has established a comprehensive system of assigning "points" for various kinds of traffic offenses, depending on severity, to provide an objective means of evaluating driving records.
3
One of the statutorily enumerated circumstances justifying license suspension or revocation is conviction of three moving traffic offenses within a 12-month period. § 6-206(a)(2).3 This is one of the instances where the Secretary, by regulation, has provided a method for determining the sanction according to the driver's accumulated "points."4
4
Another circumstance, specified in the statute, supporting suspension or revocation is where a licensee
5
"(h)as been repeatedly involved as a driver in motor vehicle collisions or has been repeatedly convicted of
6
Page 109
offenses against laws and ordinances regulating the movement
of traffic, to a degree which indicates lack of ability to
exercise ordinary and reasonable care in the safe operation
of a motor vehicle or disrespect for the traffic laws and the
safety of other persons upon the highway." § 6-206(a)(3).
Here again the Secretary has limited his broad statutory
discretion by an administrative regulation. This regulation allows
suspension or revocation, where sufficient points have been
accumulated to warrant a second suspension within a 5-year
period.5 The regulation concludes flatly: "A person who has been
suspended thrice within a 10 year period shall be revoked."
Section 6-206(c)(1)6 requires the Secretary "immediately" to
provide written notice of a discretionary suspension or revocation
under this statute, but no prior hearing is required. Within 20
days of his receiving a written request from the licensee, the
Secretary must schedule a full evidentiary hear-
7
Page 110
ing for a date "as early as practical" in either Sangamon County
or Cook County, as the licensee may specify. § 2-118(a). The final
decision of the Secretary after such hearing is subject to
judicial review in the Illinois courts. § 2-118(e). In addition, a
person whose license is suspended or revoked may obtain a
restricted permit for commercial use or in case of hardship. §§
6-206(c)(2) and (3).7
II
Appellee Love, a resident of Chicago, is employed as a
truck-driver. His license was suspended in November 1969, under §
6-206(a)(2), for three convictions within a 12-month period. He
was then convicted of a charge of driving while his license was
suspended, and consequently another suspension was imposed in
March 1970 pursuant to § 6-303(b). Appellee received no further
citation until August 1974, when he was arrested twice for
speeding. He was convicted of both charges and then received a
third speeding citation in February 1975. On March 27, he was
notified by letter that he would lose his driving privileges if
convicted of a third offense. On March 31 appellee was convicted
of the third speeding charge.
8
Page 111
On June 3, appellee received a notice that his license was
revoked effective June 6.8 The stated authority for the revocation
was § 6-206(a)(3); the explanation, following the language of the
statute, was:
"This action has been taken as a result of: Your having been
repeatedly convicted of offenses against laws and ordinances
regulating the movement of traffic, to a degree which
indicates disrespect for the traffic laws." App. 13.
Appellee, then aged 25, made no request for an administrative
hearing. Instead, he filed this purported class action9 on June 5
against the Illinois Secretary of State in the United States
District Court for the Northern District of Illinois. His
complaint sought a declaratory judgment that § 6-206(a)(3) was
unconstitutional, an injunction against enforcement of the
statute, and damages. Appellee's application for a temporary
restraining order was granted on condition that he apply for a
hardship driving permit. He applied for that permit on June 10,
and it was issued on July 25.
A three-judge District Court was convened to consider
appellee's claim that the Illinois statute was unconstitutional.
On cross-motions for summary judgment, the court held that a
license cannot constitutionally be suspended or revoked under §
6-206(a)(3) until after a hearing is held to determine whether the
licensee meets the statutory criteria of "lack of ability to
exercise ordinary and reasonable care in the safe operation of a
motor vehicle or disrespect for the traffic laws
9
Page 112
and the safety of other persons upon the highway." The court
regarded such a prior hearing as mandated by this Court's decision
in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90
(1971). Accordingly, the court granted judgment for appellee and
enjoined the Secretary of State from enforcing § 6-206(a)(3). The
Secretary appealed, and we noted probable jurisdiction sub nom.
Howlett v. Love, 429 U.S. 813, 97 S.Ct. 52, 50 L.Ed.2d 72 (1976).
III
(1) It is clear that the Due Process Clause applies to the
deprivation of a driver's license by the State:
"Suspension of issued licenses . . . involves state action
that adjudicates important interests of the licensees. In
such cases the licenses are not to be taken away without that
procedural due process required by the Fourteenth Amendment."
Bell v. Burson, 402 U.S., at 539, 91 S.Ct., at 1589.
It is equally clear that a licensee in Illinois eventually
can obtain all the safeguards procedural due process could be
thought to require before a discretionary suspension or revocation
becomes final. Appellee does not challenge the adequacy of the
administrative hearing, noted above, available under § 2-118. The
only question is one of timing. This case thus presents an issue
similar to that considered only last Term in Mathews v. Eldridge,
424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976),
namely, "the extent to which due process requires an evidentiary
hearing prior to the deprivation of some type of property interest
even if such a hearing is provided thereafter." We may analyze the
present case, too, in terms of the factors considered in Eldridge
:
"(I)dentification of the specific dictates of due process
generally requires consideration of three distinct factors:
first, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and
10
Page 113
probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail." Id., at 335, 96 S.Ct.,
at 903.
(2) The private interest affected by the decision here is
the granted license to operate a motor vehicle. Unlike the social
security recipients in Eldridge, who at least could obtain
retroactive payments if their claims were subsequently sustained,
a licensee is not made entirely whole if his suspension or
revocation is later vacated. On the other hand, a driver's license
may not be so vital and essential as are social insurance payments
on which the recipient may depend for his very subsistence. See
Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25
L.Ed.2d 287 (1970). The Illinois statute includes special
provisions for hardship and for holders of commercial licenses,
who are those most likely to be affected by the deprival of
driving privileges. See n. 7, supra. We therefore conclude that
the nature of the private interest here is not so great as to
require us "to depart from the ordinary principle, established by
our decisions, that something less than an evidentiary hearing is
sufficient prior to adverse administrative action." Mathews v.
Eldridge, 424 U.S., at 343, 96 S.Ct., at 907. See Arnett v.
Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).
Moreover, the risk of an erroneous deprivation in the absence
of a prior hearing is not great. Under the Secretary's
regulations, suspension and revocation decisions are largely
automatic. Of course, there is the possibility of clerical error,
but written objection will bring a matter of that kind to the
Secretary's attention. In this case appellee had the opportunity
for a full judicial hearing in connection with each of the traffic
convictions on which the Secretary's decision was based. Appellee
has not challenged the validity of those convictions or the
adequacy of his procedural rights at the time they were
determined. Tr. of Oral Arg. 41, 47. Since appel-
11
Page 114
lee does not dispute the factual basis for the Secretary's
decision, he is really asserting the right to appear in person
only to argue that the Secretary should show leniency and depart
from his own regulations.10 Such an appearance might make the
licensee feel that he has received more personal attention, but it
would not serve to protect any substantive rights. We conclude
that requiring additional procedures would be unlikely to have
significant value in reducing the number of erroneous
deprivations.
Finally, the substantial public interest in administrative
efficiency would be impeded by the availability of a
pretermination hearing in every case. Giving licensees the choice
thus automatically to obtain a delay in the effectiveness of a
suspension or revocation would encourage drivers routinely to
request full administrative hearings. See Mathews v. Eldridge, 424
U.S., at 347, 96 S.Ct., at 909. Far more substantial than the
administrative burden, however, is the important public interest
in safety on the roads and highways, and in the prompt removal of
a safety hazard. See Perez v. Campbell, 402 U.S. 637, 657, 671, 91
S.Ct. 1704, 1715, 1722, 29 L.Ed.2d 233 (1971) (opinion concurring
in part and dissenting in part). This factor fully distinguishes
Bell v. Burson, supra, where the "only purpose" of the Georgia
statute there under consideration was "to obtain security from
which to pay any judgments against the licensee resulting from the
accident". 402 U.S., at 540, 91 S.Ct., at 1590.11 In contrast, the
Illinois statute at
12
Page 115
issue in the instant case is designed to keep off the roads those
drivers who are unable or unwilling to respect traffic rules and
the safety of others.
We conclude that the public interests present under the
circumstances of this case are sufficiently visible and weighty
for the State to make its summary initial decision effective
without a predecision administrative hearing.
(3) The present case is a good illustration of the fact
that procedural due process in the administrative setting does not
always require application of the judicial model. When a
governmental official is given the power to make discretionary
decisions under a broad statutory standard, case-by-case
decisionmaking may not be the best way to assure fairness. Here
the Secretary commendably sought to define the statutory standard
narrowly by the use of his rulemaking authority.12 The decision to
use objective rules in this case provides drivers with more
precise notice of what conduct will be sanctioned and promotes
equality of treatment among similarly situated drivers. The
approach taken by the District Court would have the contrary
result of reducing the fairness of the system, by requiring a
necessarily subjective inquiry in each case as to a driver's
"disrespect" or "lack of ability to exercise ordinary and
reasonable care."
The second count of appellee's complaint challenged §
6-206(a)(3) on the grounds of vagueness and inadequacy of
standards. The three-judge court did not reach the issue.
13
Page 116
App. 22. We regard the claim, in the light of Love's record, as
frivolous.
The judgment of the District Court is reversed.
It is so ordered.
Mr. Justice REHNQUIST took no part in the consideration or
decision of this case.
djQ Mr. Justice STEVENS, with whom Mr. Justice MARSHALL joins,
concurring.
While I join the opinion of the Court, I believe it is
important to point out that the Court has not rejected the
constitutional analysis of the District Court. The District Court
held that a driver's license may not be revoked on the basis of an
ex parte determination that certain facts "indicate . . .
disrespect for the traffic laws." This Court does not disagree. It
merely holds that the District Court erred in its assumption that
appellee's license was revoked on the authority of the first
sentence of Rule 6-206(a)3 (1975),1 which the District Court
construed to require such a determination.2
14
Page 117
The Court interprets the Secretary's action as resting on the
second sentence of Rule 6-206(a)3 which provides that a person's
license must be revoked if it has been suspended three times in 10
years. Appellee's license had already been suspended twice. A
third suspension would have been required under a different rule
because appellee had three convictions in one year.3 Consequently,
appellee's license was subject to mandatory revocation, see ante,
at 111 n. 8, and no prior hearing was necessary.
djQ Mr. Justice BRENNAN, concurring in the result.
My Brother STEVENS' concurring opinion makes clear that
appellee's license was revoked under a valid regulation making revocation mandatory if his license had been suspended three times within 10 years. Rule 6-206(a)3 (1975). Appellee's license was properly suspended for a third time within a 10-year period when he was convicted of a speeding violation on March 31, 1976. This suspension, and both earlier suspensions, were based on convictions for traffic offenses which appellee does not contest here. Under these circumstances, the requirement of a prior hearing mandated by Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), is not applicable since, as my Brother STEVENS demonstrates, a hearing was unnecessary to establish what was already clear that the revocation of appellee's license was mandatory.
1
Section 6-211 (a): "The Secretary of State shall administer the provisions of this Chapter and may make and enforce rules and regulations relating to its administration."
2
Rule 6-206(a) (1975) provides in part:
"The Secretary of State is authorized to exercise discretionary authority to suspend or revoke the license or permit of any person without a preliminary hearing, or to decline to suspend or revoke such driving privileges. In making a determination of the action to be taken, the Secretary of State shall take into consideration the severity of the offense and conviction, the number of offenses and convictions, and prior suspensions or revocations on the abstract of the driver's record. The Secretary may also take into consideration the points accumulated by the driver and noted on his driving record.
"For the purpose of this Rule and its companion rules, a conviction is the final adjudication of 'guilty' by a court of competent jurisdiction, either after a bench trial, trial by jury, plea of guilty, order of forfeiture, or default, as reported to the Secretary of State, and the Secretary of State is not authorized to consider or inquire into the facts and circumstances surrounding the conviction."
3
The statute authorizes suspension or revocation where a licensee
"(h)as been convicted of not less than 3 offenses against traffic regulations governing the movement of vehicles with the exception of those offenses excluded under the provisions of Section 6-204(2), committed within any 12 month period so as to indicate the disrespect for traffic laws and a disregard for the safety of other persons on the highways; conviction upon 3 charges of violation of Section 11-601 of this Act committed within a period of 12 months shall be deemed grounds for the revocation or suspension of a license or permit under this Section, provided that no such revocation or suspension shall be entered more than 6 months subsequent to the date of conviction of the 3rd offense." Ill.Rev.Stat. c. 951/2, § 6-206(a)(2) (1975).
4
Rule 6-206(a)2 (1975) provides:
"A person who has been convicted of three (3) or more offenses against traffic regulations, governing the movement of vehicles, with the exception of those offenses excluded under provisions of Section 6-204(2) and whose violations have occurred within a twelve (12) month period may be suspended as follows:
"Number of points Action
20 to 44 Suspension up to 2 months
45 to 74 Suspension up to 3 months
75 to 89 Suspension up to 6 months
90 to 99 Suspension up to 9 months
100 to 109 Suspension up to 12 months
Over 110 Revocation for not less than 12 months
"A person who has accumulated sufficient points to warrant a
second suspension within a 10-year period may be either suspended
or revoked, depending on the number of points. In the event of a
second suspension in the 10-year period, the length of suspension,
determined by the point total, is doubled to arrive at the type
and duration of action."
5 Rule 6-206(a)3 (1975) provides:
"A person repeatedly involved in collisions or convictions to
a degree which indicates the lack of ability to exercise ordinary
and reasonable care in the safe operation of a motor vehicle, or
whose record indicates disrespect for traffic laws and the safety
of other persons on the highway, and who has accumulated
sufficient points to warrant a second suspension within a 5 year
period, may either be suspended or revoked by the Secretary of
State, based upon the number of points in his record. A person who
has been suspended thrice within a 10 year period shall be
revoked."6.Section 6-206(c)(1): "Upon suspending or revoking the
license or permit of any person as authorized in this Section, the
Secretary of State shall immediately notify such person in writing
of the order revoking or suspending the license or permit. Such
notice to be deposited in the United States mail, postage prepaid,
to the last known address of such person."
7 The statutory provision regarding commercial licenses
provides that a suspension shall not deny "a person's license to
drive a commercial vehicle only as an occupation . . . unless 5
offenses were committed, at least 2 of which occurred while
operating a commercial vehicle in connection with his regular
occupation." The statute places the burden on the commercial
driver whose license is suspended to submit an affidavit to the
Secretary within 25 days, setting forth facts establishing his
eligibility for relief under this section. A commercial driver may
obtain the same relief by requesting an administrative hearing in
lieu of submitting an affidavit. In any event, the driver must
return his license to the Secretary and in its place is issued a
permit to drive only a commercial vehicle in his regular
occupation. § 6-206(c)(2).
Any driver whose license is suspended or revoked, in order to
"relieve undue hardship," may apply for a restricted permit to
drive between his residence and his place of employment "or within
other proper limits." § 6-206(c)(3).
8 Appellee's March speeding conviction was his third within
a 12-month period, and thus § 6-206(a)(2) authorized suspension of
his license. That suspension, however, would have been appellee's
third within a 10-year period. The Secretary therefore proceeded
directly under Rule 6-206(a)3, which makes revocation mandatory
under such circumstances. The District Court treated this
procedure as functionally equivalent to suspension under §
6-206(a)(2), followed by mandatory revocation under Rule 6-206(a).
See App. 20 n.2.9 The class was never certified.
10 Appellee also contends that a prior hearing would avoid
erroneous deprivation of a license where the commercial driver or
hardship exceptions are applicable. See n. 7, supra. It is clear,
however, that these statutory provisions contemplate relief only
after the initial decision to suspend or revoke is made, and the
licensee has the burden of demonstrating his eligibility for the
relief. An initial suspension or revocation, therefore, is not
"erroneous" even if the licensee subsequently qualifies for relief
as a commercial driver or hardship case.11 Since Bell v. Burson was decided, courts have sustained
suspension or revocation of driving privileges, without prior
hearing, where earlier convictions were on the record. See, e. g.,
Cox v. Hjelle, 207 N.W.2d 266, 269-270 (N.D.1973); Stauffer v.
Weedlun, 188 Neb. 105, 195 N.W.2d 218, appeal dismissed, 409 U.S.
972, 93 S.Ct. 307, 34 L.Ed.2d 236 (1972); Horodner v. Fisher, 38
N.Y.2d 680, 382 N.Y.S.2d 28, 345 N.E.2d 571, appeal dismissed, 429
U.S. 802, 97 S.Ct. 33, 50 L.Ed.2d 62 (1976); Wright v. Malloy, 373
F.Supp. 1011, 1018-1019 (Vt.), summarily aff'd, 419 U.S. 987, 95
S.Ct. 297, 42 L.Ed.2d 261 (1974); Scott v. Hill, 407 F.Supp. 301,
304 (ED Va. 1976).
12 See K. Davis, Discretionary Justice, c. III, 52-96
(1969). The promulgation of rules may be of particular value when
it is necessary for administrative decisions to be made summarily.
See Freedman, Summary Action by Administrative Agencies, 40
U.Chi.L.Rev. 1, 44-49 (1972).
1 Rule 6-206(a)3 provides:
"A person repeatedly involved in collisions or convictions to
a degree which indicates the lack of ability to exercise ordinary
and reasonable care in the safe operation of a motor vehicle, or
whose record indicates disrespect for traffic laws and the safety
of other persons on the highway, and who has accumulated
sufficient points to warrant a second suspension within a 5 year
period, may either be suspended or revoked by the Secretary of
State, based upon the number of points in his record. A person who
has been suspended thrice within a 10 year period shall be
revoked."2.The District Court construed Rule 6-206(a)3 as follows:
"The statute makes suspension or revocation dependent on a
determination of whether the driver's repeated involvement in
collisions or conviction of offenses indicates lack of ability to
use due care or disrespect for the traffic laws and the safety of
others. The regulation makes suspension or revocation dependent
both on such a determination and the accumulation of a given
number of points, and even when the Secretary 'may' but is not
required to suspend or revoke the driver's license. Only when a
driver has been suspended thrice in a ten-year period is the
Secretary's action made mandatory." App. 20.
3 Rule 6-206(a)2 (1975) provides in pertinent part:
"A person who has been convicted of three (3) or more
offenses against traffic regulations, governing the movement of
vehicles, with the exception of those offenses excluded under
provisions of Section 6-204(2) and whose violations have occurred
within a twelve (12) month period may be suspended as follows:
Number of Points Action
20 to 44 Suspension up to 2 months
45 to 74 Suspension up to 3 months
75 to 89 Suspension up to 6 months
90 to 99 Suspension up to 9 months
100 to 109 Suspension up to 12 months
Over 110 Revocation for not less than 12 months
This rule can be fairly construed to leave the Secretary substantial discretion concerning only the length of the suspension. Moreover, this rule implements Ill.Rev.Stat. c. 951/2, § 6-206(a)(2) (1975), but the complaint does not challenge the constitutionality of that subsection; only § 206(a)(3) is attacked.
The District Court noted that appellee had previously been "notified by letter that a further conviction would result in loss of his driving privileges." App. 17.
| 34
|
431 U.S. 119
97 S.Ct. 1709
52 L.Ed.2d 184
Jack B. KREMENS, etc., et al., Appellants,v.Kevin BARTLEY et al.
No. 75-1064.
Argued Dec. 1, 1976.
Decided May 16, 1977.
Syllabus
Appellees, five mentally ill individuals who were between 15 and 18 years old at the time the complaint was filed, were the named plaintiffs in an action challenging the constitutionality of a 1966 Pennsylvania statute governing the voluntary admission and voluntary commitment to state mental health institutions of persons aged 18 or younger. Appellees sought to vindicate their constitutional rights and to represent a class consisting of all persons under 18 "who have been, are, or, may be admitted or committed" to state mental health facilities. The statute provided, inter alia, that a juvenile might be admitted upon a parent's application, and that, unlike an adult, the admitted person was free to withdraw only with the consent of the parent admitting him. After the commencement of the action, regulations were promulgated substantially increasing the procedural safeguards afforded minors aged 13 or older. After those regulations had become effective, and notwithstanding the differentiation therein between juveniles of less than 13 and those 13 to 18, the District Court certified the class to be represented by the plaintiffs as consisting of all persons 18 or younger who have been or may be admitted or committed to Pennsylvania mental health facilities pursuant to the challenged provisions. The District Court later issued a decision holding those provisions violative of due process. In July 1976, after that decision, and after this Court had noted probable jurisdiction, a new statute was enacted, repealing the provisions held to be unconstitutional except insofar as they relate to the mentally retarded. Under the 1976 Act a person 14 or over may voluntarily admit himself, but his parents may not do so; thus those 14 to 18 who were subject to commitment by their parents under the 1966 Act are treated as adults by the 1976 Act. Children 13 and younger may still be admitted for treatment by a parent. Those 14 and over may withdraw from voluntary treatment by giving written notice. Those under 14 may be released on the parent's request, and "any responsible party" may petition for release. Held:
1. The enactment of the 1976 Act, which completely repealed and replaced the challenged provisions vis-a-vis the named appellees, clearly moots the claims of the named appellees, who are treated as adults totally free to leave the hospital and who cannot be forced to return unless they consent to do so. Pp. 128-129.
2. The material changes in the status of those included in the class certified by the District Court that resulted from the 1976 Act and the regulations preclude an informed resolution of that class' constitutional claims. Pp. 129-133.
(a) Though the mootness of the claims of named plaintiffs does not "inexorably" require dismissal of the claims of the unnamed members of the class, Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532; Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444, this Court has never adopted a flat rule that the mere fact of certification by a district court requires resolution of the merits of the claims of the unnamed members of the class when those of the named parties had become moot. Pp. 129-130.
(b) Here the status of all members of the class, except those individuals who are younger than 13 and mentally retarded, has changed materially since this suit began; the intervening legislation has fragmented the class. The propriety of the class certification is thus a matter of gravest doubt. Cf. Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74. Pp. 130-133.
(c) Moreover, the issue in this case with respect to a properly certified class is not one that is "capable of repetition, yet evading review." Sosna, supra, distinguished. P. 133.
3. Since none of the critical factors that might allow adjudication of the claims of a class after mootness of the named plaintiffs are present here, the case must be remanded to the District Court for reconsideration of the class definition, exclusion of those whose claims are moot, and substitution of class representatives with live claims. Pp. 133-135. 402 F.Supp. 1039, vacated and remanded.
Norman J. Watkins, Harrisburg, Pa., for the appellants by Bernard G. Segal, Philadelphia, Pa., for the Supreme Court of Pennsylvania, as amicus curiae, by special leave of Court.
David Ferleger, Philadelphia, Pa., for the appellees.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
* Appellees Bartley, Gentile, Levine, Mathews, and Weand were the named plaintiffs in a complaint challenging the constitutionality of Pennsylvania statutes governing the voluntary admission and voluntary commitment to Pennsylvania mental health institutions of persons 18 years of age or younger. The named plaintiffs alleged that they were then being held at Haverford State Hospital, a Pennsylvania mental health facility, and that they had been admitted or committed pursuant to the challenged provisions of the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann., tit. 50, § 4101 et seq. (1969). Various state and hospital officials were named as defendants.1
2
Plaintiffs sought to vindicate not only their own constitutional rights, but also sought to represent a class consisting of
3
"all person under eighteen years of age who have been, are, or, may be admitted or committed to Haverford State Hospital and all other state mental health facilities under the challenged provisions of the state statute." App. 10a-11a (complaint, P 7).
4
A three-judge United States District Court for the Eastern District of Pennsylvania struck down the statutes as violative of the Due Process Clause of the Fourteenth Amendment. 402 F.Supp. 1039 (1975). The court also entered a broad order requiring the implementation of detailed procedural protections for those admitted under the Pennsylvania statutes. On December 15, 1975, this Court granted appellants' application for a stay of the judgment of the District Court. On March 22, 1976, we noted probable jurisdiction. 424 U.S. 964, 96 S.Ct. 1457, 47 L.Ed.2d 731.
5
In general, the 1966 Act, which has been superseded to a significant degree, provides for three types of admission to a mental health facility for examination, treatment, and care: voluntary admission or commitment (§§ 402 and 403), emergency commitment (§ 405), and civil court commitment (§ 406). At issue here was the constitutionality of the voluntary admission and commitment statutes,2 §§ 402 and 403, as those statutes regulate the admission of persons 18 years of age or younger. The statutes3 provide that juveniles may be admitted upon the application of a parent, guardian, or individual standing in loco parentis and that, unlike adults, the admitted person is free to withdraw only with the consent of the parent or guardian admitting him.4
6
There have been two major changes in the Pennsylvania statutory scheme that have materially affected the rights of juveniles: the promulgation of regulations under the 1966 Act, and the enactment of the Mental Health Procedures Act in 1976. At the time the complaint was filed, the 1966 Act made little or no distinction between older and younger juveniles. Each of the named plaintiffs was at that time between 15 and 18 years of age. After the commencement of this action, but before class certification or decision on the merits by the District Court, the Pennsylvania Department of Public Welfare promulgated regulations which substantially increased the procedural safeguards afforded to minors 13 years of age or older. The regulations, promulgated pursuant to statutory authority,5 became effective September 1, 1973. The major impact of the regulations6 upon this litigation stems from the fact that the regulations accord significant procedural protections to those 13 and older, but not to those less than 13. The older juveniles are given notification of their rights, the telephone number of counsel, and the right to institute a § 406 involuntary commitment proceeding in court within two business days. Under § 406,7 a judicial hearing is held after notice to the parties. The younger juveniles are not given the right to a hearing and are still remitted to relying upon the admitting parent or guardian.
7
Although the regulations sharply differentiate between juveniles of less than 13 years of age and those 13 to 18, on April 29, 1974, the District Court nonetheless certified the following class to be represented by the plaintiffs:
8
"This action shall be maintained as a class action under Rule 23(b)(1) and (2) of the Federal Rules of Civil Procedure on behalf of the class comprised of all persons eighteen years of age or younger who have been, are or may be admitted or committed to mental health facilities in Pennsylvania pursuant to the challenged provisions of the state mental health law (i. e., 50 P.S. §§ 4402 and 4403). This definition of the class is without prejudice to the possibility that it may be amended or altered before the decision on the merits herein." App. 270a.
9
On July 9, 1976, after the decision below and after this Court had noted probable jurisdiction, Pennsylvania enacted a new statute substantially altering its voluntary admission procedures. Mental Health Procedures Act, Pa. Act No. 143. The new Act completely repeals the provisions declared unconstitutional below except insofar as they relate to mentally retarded persons. § 502. Under the new Act, any person 14 years of age or over may voluntarily admit himself, but his parents may not do so; those 14 to 18 who were subject to commitment by their parents under the 1966 Act, are treated essentially as adults under the new Act. § 201.8 Under the new Act children 13 and younger may still be admitted for treatment by a parent, guardian, or person standing in loco parentis. Ibid. Those 14 and over may withdraw from voluntary treatment "at any time by giving written notice." § 206(a).9 Those under 14 may be released by request of the parent; in addition, "any responsible party" may petition the Juvenile Division of the Court of Common Pleas to request withdrawal of the child or modification of his treatment. § 206(b).
10
Because we have concluded that the claims of the named appellees are mooted by the new Act, and that the claims of the unnamed members of the class are not properly presented for review, we do not dwell at any length upon the statutory scheme for voluntary commitment in Pennsylvania or upon the rationale of the District Court's holding that the 1966 Act and regulations did not satisfy due process.
II
11
This case presents important constitutional issues issues that were briefed and argued before this Court. However, for reasons hereafter discussed, we conclude that the claims of the named appellees are mooted by the new Act and decline to adjudicate the claims of the class certified by the District Court. That class has been fragmented by the enactment of the new Act and the promulgation of the regulations.
12
Constitutional adjudication being a matter of "great gravity and delicacy," see Ashwander v. TVA, 297 U.S. 288, 345, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), we base our refusal to pass on the merits on "the policy rules often invoked by the Court 'to avoid passing prematurely on constitutional questions. Because (such) rules operate in "cases confessedly within (the Court's) jurisdiction" . . . they find their source in policy, rather than purely constitutional, considerations.' " Franks v. Bowman Transportation Co., 424 U.S. 747, 756 n. 8, 96 S.Ct. 1251, 1260, 47 L.Ed.2d 444 (1976).
A.
13
At the time the complaint was filed, each of the named plaintiffs was older than 14, and insofar as the record indicates, mentally ill.10 The essence of their position was that, as matters stood at that time, a juvenile 18 or younger could be "voluntarily" admitted upon application of his parent, over the objection of the juvenile himself. Thus, appellees urged in their complaint that the Due Process Clause required that they be accorded the right to a hearing, as well as other procedural protections to ensure the validity of the commitment. App. 21a-22a, (complaint P 46).
14
(1-3) The fact that the Act was passed after the decision below does not save the named appellees' claims from mootness. There must be a live case or controversy before this Court, Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 558, 42 L.Ed.2d 532 (1975), and we apply the law as it is now, not as it stood below. Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975); Sosna v. Iowa, supra. Thus the enactment of the new statute11 clearly moots the claims of the named appellees, and all others 14 or older and mentally ill.
15
These concerns were eradicated with the passage of the new Act, which applied immediately to all persons receiving voluntary treatment. § 501. The Act, in essence, treats mentally ill juveniles 14 and older as adults. They may voluntarily commit themselves, but their parents may not do so, § 201, and one receiving voluntary treatment may withdraw at any time by giving written notice. § 206. With respect to the named appellees, the Act completely repealed and replaced the statutes challenged below, and obviated their demand for a hearing, and other procedural protections, since the named appellees had total freedom to leave the hospital, and could not be forced to return absent their consent. After the passage of the Act, in no sense were the named appellees "detained and incarcerated involuntarily in mental hospitals," as they had alleged in the complaint, App. 21a.
B
16
If the only appellees before us were the named appellees, the mootness of the case with respect to them would require that we vacate the judgment of the District Court with instructions to dismiss their complaint. United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950). But as we have previously indicated, the District Court certified, pursuant to Fed.Rule Civ.Proc. 23, the class described supra, at 125-126.
17
(4, 5) In particular types of class actions this Court has held that the presence of a properly certified class may provide an added dimension to our Art. III analysis, and that the mootness of the named plaintiffs' claims does not "inexorably" require dismissal of the action. Sosna, supra, 419 U.S., at 399-401, 95 S.Ct., at 557-558. See also Franks v. Bowman Transportation, Inc., supra, 424 U.S., at 752-757, 96 S.Ct., at 1258-1260; Gerstein v. Pugh, 420 U.S. 103, 110-111, n. 11, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975). But we have never adopted a flat rule that the mere fact of certification of a class by a district court was sufficient to require us to decide the merits of the claims of unnamed class members when those of the named parties had become moot. Cf. Sosna, supra, 419 U.S., at 402, 95 S.Ct., at 558. Here, the promulgation of the regulations materially changed, prior to class certification, the controverted issues with respect to a large number of unnamed plaintiffs; prior to decision by this Court, the controverted issues pertaining to even more unnamed plaintiffs have been affected by the passage of the 1976 Act. We do not think that the fragmented residual of the class originally certified by the District Court may be treated as were the classes in Sosna and Franks.
18
There is an obvious lack of homogeneity among those unnamed members of the class originally certified by the District Court. Analysis of the current status of the various subgroups reveals a bewildering lineup of permutations and combinations. As we parse it, the claims of those 14 and older and mentally ill are moot. They have received by statute all that they claimed under the Constitution. Those 14 and older and mentally retarded are subject to the 1966 Act, struck down by the District Court, but are afforded the protections of the regulations. Their claims are not wholly mooted, but are satisfied in many respects by the regulations. Those 13 and mentally ill are subject to the admissions procedures of the new Act, arguably supplemented by the procedural protection of the regulations. The status of their claims is unclear. Those 13 and mentally retarded are subject to the 1966 Act and the regulations promulgated thereunder. Their claims are satisfied in many respects. Those younger than 13 and mentally ill are unaided by the regulations and are subject to the admissions procedures of the 1976 Act, the constitutional effect of which has not been reviewed by the District Court. Those younger than 13 and mentally retarded are subject to the 1966 Act, unaffected by the regulations. This latter group is thus the only group whose status has not changed materially since the outset of the litigation. These fragmented subclasses are represented by named plaintiffs whose constitutional claims are moot, and it is the attorneys for these named plaintiffs who have conducted the litigation in the District Court and in this Court.12
19
The factors which we have just described make the class aspect of this litigation a far cry indeed from that aspect of the litigation in Sosna and in Franks, where we adjudicated the merits of the class claims notwithstanding the mootness of the claims of the named parties. In Sosna, the named plaintiff had by the time the litigation reached this Court fulfilled the residency requirement which she was challenging, but the class described in the District Court's certification remained exactly the same. In that case, mootness was due to the inexorable passage of time, rather than to any change in the law. In Franks, a Title VII discrimination lawsuit, the named plaintiff had been subsequently discharged for a nondiscriminatory reason, and therefore before this Court that plaintiff no longer had a controversy with his employer similar to those of the unnamed members of the class. But the metes and bounds of each of those classes remained the same; the named plaintiff was simply no longer within them.
20
Here, by contrast, the metes and bounds of the class certified by the District Court have been carved up by two changes in the law. In Sosna and Franks, the named plaintiffs had simply "left" the class, but the class remained substantially unaltered. In both of those cases, the named plaintiff's mootness was not related to any factor also affecting the unnamed members of the class. In this case, however, the class has been both truncated and compartmentalized by legislative action; this intervening legislation has rendered moot not only the claims of the named plaintiffs but also the claims of a large number of unnamed plaintiffs.13 The legislation, coupled with the regulations, has in a word materially changed the status of those included within the class description.
21
(6) For all of the foregoing reasons, we have the gravest doubts whether the class, as presently constituted, comports with the requirements of Fed.Rule Civ.Proc. 23(a).14 And it is only a "properly certified" class that may succeed to the adversary position of a named representative whose claim becomes moot. Indianapolis School Com'rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975).
22
In addition to the differences to which we have already adverted, the issues presented by these appellees, unlike that presented by the appellant in Sosna, supra, are not "capable of repetition, yet evading review." In the latter case there is a significant benefit in according the class representative the opportunity to litigate on behalf of the class, since otherwise there may well never be a definitive resolution of the constitutional claim on the merits by this Court. We stated in Franks that "(g)iven a properly certified class action, . . . mootness turns on whether, in the specific circumstances of the given case at the time it is before this Court, an adversary relationship sufficient to fulfill this function exists." 424 U.S., at 755-756, 96 S.Ct., at 1260. We noted that the "evading review" element was one factor to be considered in evaluating the adequacy of the adversary relationship in this Court. Id., at 756 n. 8, 96 S.Ct., at 1260. In this case, not only is the issue one that will not evade review, but the existence of a "properly certified class action" is dubious, and the initial shortcomings in the certification have multiplied. See Indianapolis School Comm'rs v. Jacobs, supra.
23
In sum, none of the critical factors that might require us to adjudicate the claims of a class after mootness of the named plaintiff's claims are present here. We are dealing with important constitutional issues on the merits, issues which are not apt to evade review, in the context of mooted claims on the part of all of the named parties and a certified class which, whatever the merits of its original certification by the District Court, has been fragmented by the enactment of legislation since that certification. While there are "live" disputes between unnamed members of portions of the class certified by the District Court, on the one hand, and appellants, on the other, these disputes are so unfocused as to make informed resolution of them almost impossible. Cf. Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42 L.Ed.2d 521 (1976). We accordingly decline to pass on the merits of appellees' constitutional claims.15
24
We conclude that before the "live" claims of the fragmented subclasses remaining in this litigation can be decided on the merits, the case must be remanded to the District Court for reconsideration of the class definition, exclusion of those whose claims are moot, and substitution of class representatives with live claims.
25
Because the District Court will confront this task on remand, we think it not amiss to remind that court that it is under the same obligation as we are to "stop, look, and listen" before certifying a class in order to adjudicate constitutional claims. That court, in its original certification, ignored the effect of the regulations promulgated by appellants which made a dramatic distinction between older and younger juveniles,16 and, according to the District Court, 402 F.Supp., at 1042, accorded the named appellees all of the protections which they sought, save two: the right to a precommitment hearing, and the specification of the time for the postcommitment hearing.
26
This distinction between older and younger juveniles, recognized by state administrative authorities (and later by the Pennsylvania Legislature in its enactment of the 1976 Act), emphasizes the very possible differences in the interests of the older juveniles and the younger juveniles. Separate counsel for the younger juveniles might well have concluded that it would not have been in the best interest of their clients to press for the requirement of an automatic precommitment hearing, because of the possibility that such a hearing with its propensity to pit parent against child might actually be antithetical to the best interest of the younger juveniles. In the event that these issues are again litigated before the District Court, careful attention must be paid to the differences between mentally ill and mentally retarded, and between the young and the very young. It may be that Pennsylvania's experience in implementing the new Act will shed light on these issues.
III
27
(7) This disposition is made with full recognition of the importance of the issues, and of our assumption that all parties earnestly seek a decision on the merits. As Mr. Justice Brandeis stated in his famous concurrence in Ashwander v. TVA, 297 U.S., at 345, 56 S.Ct., at 482:
28
"The fact that it would be convenient for the parties and the public to have promptly decided whether the legislation assailed is valid, cannot justify a departure from these settled rules . . . ."
29
And, as we have more recently observed in the context of "ripeness":
30
"All of the parties now urge that the 'conveyance taking' issues are ripe for adjudication. However, because issues of ripeness involve, at least in part, the existence of a live 'Case or Controversy,' we cannot rely upon concessions of the parties and must determine whether the issues are ripe for decision in the 'Case or Controversy' sense. Further, to the extent that questions of ripeness involve the exercise of judicial restraint from unnecessary decision of constitutional issues, the Court must determine whether to exercise that restraint and cannot be bound by the wishes of the parties." Regional Rail Reorganization Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 356, 42 L.Ed.2d 320 (1974). (Footnote omitted.)
31
(8) Our analysis of the questions of mootness and of our ability to adjudicate the claims of the class in this case is consistent with the long-established rule that this Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Liverpool, N. Y. & P. S. S. Co. v. Emigration Comm'rs, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885). The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion.
32
It is so ordered.
33
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
34
As was true three Terms ago with respect to another sensitive case brought to this Court, I can "find no justification for the Court's straining to rid itself of this dispute." DeFunis v. Odegaard, 416 U.S. 312, 349, 94 S.Ct. 1704, 1722, 40 L.Ed.2d 164 (1974) (Brennan, J., dissenting). "Although the Court should, of course, avoid unnecessary decisions of constitutional questions, we should not transform principles of avoidance of constitutional decisions into devices for sidestepping resolution of difficult cases." Id., at 350, 94 S.Ct., at 1722.
35
Pursuant to Fed.Rule Civ.Proc. 23, the District Court, on April 29, 1974, certified appellee class consisting of persons 18 years of age or younger who are or may be committed to state mental facilities under Pennsylvania's Mental Health and Mental Retardation Act of 1966. The State not only did not then oppose the certification, but to this day urges that this Court render a decision on the "important constitutional issues . . . that were briefed and argued before this Court." Ante, at 127. Over a score of amici curiae organizations and parties similarly joined in presenting their views to us. Ordinarily of course, the defendant's failure to object to a class certification waives any defects not related to the "cases or controversies" requirement of Art. III, cf. O'Shea v. Littleton, 414 U.S. 488, 494-495, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974), and would require us to proceed to the merits of the dispute.
36
The Court pointedly does not suggest that the class definition suffers from constitutionally based jurisdictional deficiencies. Instead, its analysis follows a different route. We are first told that it is likely1 that the claims of the named class members are moot. After several pages in which the Court parses decisions like Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), and Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), for selected clauses and phrases, thereby attempting to distinguish the present case from those earlier decisions where class claims were allowed to reach decision, the opinion ultimately concludes that in their present posture the legal claims of the class members "are so unfocused as to make informed resolution of them almost impossible", ante, at 134, citing Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975). Accordingly, the Court "decline(s) to pass on the merits of appellees' constitutional claims", ante, at 134, and remands to the District Court for clarification of the class certification.
37
What does all this mean? Most importantly, the Court's class-action analysis must be placed in proper perspective, for it is obvious that the Court's extended discussion of Sosna, Franks, and like cases is a mere camouflage of dicta bearing no relationship to the disposition of this case. Those earlier cases merely recognized the continued existence of Art. III jurisdiction notwithstanding the subsequent mootness of the claims of the named parties to a class action. They said nothing about this Court's discretionary authority to remand a class claim or any other claim to the lower courts for needed clarification. Thus, in the present case, the fact that the claims of the named plaintiffs may or may not be mooted, ante, at 128-129, is irrelevant, for, if the condition of the record so requires, a remand to clarify matters necessary to permit proper consideration of the issues in this appeal would be warranted regardless of whether the named parties remained in the case. Similarly, the Court's various suggestions that these named plaintiffs "left" the class in a manner distinguishable from those in Sosna and Franks, ante, at 132, and that the issues presented herein are "not capable of repetition, yet evading review," ante, at 133, are without meaning. This Court's power to remand cases as in Fusari v. Steinberg is in no way dependent on these factors, and is not foreclosed by the existence of Art. III jurisdiction as found in Franks, Sosna, and their progeny.
38
Indeed, it is clear that for all the extraneous discussion of Sosna and Franks, the decision today follows those cases, for it recognizes that an Art. III "case or controversy" persists in this instance notwithstanding the apparent mootness of the claims of named plaintiffs, and, therefore, confirms that our jurisdiction is constitutionally viable. Otherwise, of course, the Court could not, as it does today, voluntarily "decline" to pass on the merits of the suit, ante, at 134, but rather would be compelled to avoid any such decision. While, as shall be seen, I disagree that the modification of Pennsylvania law warrants even a clarifying remand in this instance, I think it particularly unwise to hide a purely discretionary decision behind the language of Art. III jurisdiction. After all, the action actually taken today by the Court a remand for consideration in light of intervening law is regularly ordered in one or two short paragraphs without such fanfare or gratuitous discussion. See, e. g., Philadelphia v. New Jersey, 430 U.S. 141, 97 S.Ct. 987, 51 L.Ed.2d 224 (1977); cf. Cook v. Hudson, 429 U.S. 165, 97 S.Ct. 543, 50 L.Ed.2d 373 (1976).
39
I do not express this objection to the Court's opinion due to a concern for craft alone. Jurisdictional and procedural matters regularly dealt with by the Court often involve complex and esoteric concepts. An opinion that is likely to lead to misapplication of these principles will cost litigants dearly and will needlessly consume the time of lower courts in attempting to decipher and construe our commands. Consequently I have frequently voiced my concern that the recent Art. III jurisprudence of this Court in such areas as mootness and standing is creating an obstacle course of confusing standardless rules to be fathomed by courts and litigants, see, e. g., Warth v. Seldin, 422 U.S. 490, 519-530, 95 S.Ct. 2197, 2215-2221, 45 L.Ed.2d 343 (1975) (BRENNAN, J., dissenting); DeFunis v. Odegaard, 416 U.S., at 348-350, 94 S.Ct., at 1721-1722 (BRENNAN, J., dissenting), without functionally aiding in the clear, adverse presentation of the constitutional questions presented. As written, today's opinion can only further stir up the jurisdictional stew and frustrate the efforts of litigants who legitimately seek access to the courts for guidance on the content of fundamental constitutional rights.
40
In this very case, for example, we deny to the parties and to numerous amici intervenors an authoritative constitutional ruling for a reason that at best has only surface plausibility. In truth, the Court's purported concern for the "lack of homogeneity" among the children in the class is meaningless in the context of this appeal. The District Court's judgment established and applied a minimum threshold of due process rights available across the board to all children who are committed to mental facilities by their parents pursuant to Pennsylvania law. The core of the mandated rights, essentially the non-waivable appointment of counsel for every child and the convening of commitment hearings within specified time periods,2 applies equally to all Pennsylvania children who are subject to parental commitment. In reviewing the propriety of these threshold constitutional requirements, our inquiry is not to any meaningful extent affected by the intervening change in Pennsylvania law.3 Indeed, we are informed by Pennsylvania officials that the 1976 amendment, by abolishing parental commitment of mentally ill children over 14, merely serves to eliminate 20% of the members of the certified class from the lawsuit. Reply Brief for Appellants 1. The amendment, however, bears no relationship whatever to the District Court's judgment insofar as it pertains to the remaining 80% of the class that is, to those children who can still be committed by their parents.4 The Commonwealth of Pennsylvania itself acknowledges that "(o)ver three-fourths of the plaintiff class . . . are subject to the very statutes which the lower court examined, declared unconstitutional, and enjoined." Id., at 3. The Court's disposition of this case, therefore, ensures nothing but an opportunity for the waste of valuable time and energy. At most, the District Court on remand realistically can be expected to confirm that 20% of the children no longer are members of the class, while reaffirming its carefully considered judgment as to the remaining 80%. I do not understand why we do not spare the District Court this purely mechanical task of paring down the class, for nothing would now prevent us from excluding 20% of the children from our consideration of the merits and evaluating the District Court's judgment as it affects the remaining 80%. See, e. g., Franks v. Bowman Transportation Co., 424 U.S., at 755-757, 96 S.Ct., at 1259-1260.
41
Nor can the Court's action be justified by its order to the District Court that new class representatives with live claims be substituted to press forward with the suit. For, again, in the posture of this case, this is purely a matter of form. Franks, Sosna, and Gerstein v. Pugh, 420 U.S. 103, 110-111, n. 11, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975), plainly recognize and act upon the premise that, given the representative nature of class actions,5 the elimination of named plaintiffs ordinarily will have no effect on the "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). Certainly, in this appeal there can be no question of adequate adversity and cogency of argument. Attorneys for the class continue diligently to defend their judgment in behalf of the children who are still within the purview of Pennsylvania's parental commitment law. Pennsylvania equally diligently resists the District Court's judgment and pressures for a controlling constitutional decision. And a vast assortment of amici curiae ranging from sister States to virtually all relevant professional organizations have submitted briefs informing our deliberations from every perspective and orientation plausibly relevant to the case. In brief, the Court's assertion of its inability "to make informed resolution of" the issues is, in this instance, pure fancy.
42
I do not believe that we discharge our institutional duty fairly, or properly service the constituencies who depend on our guidance, by issuing meaningless remands that play wasteful games with litigants and lower courts.6 Therefore, I respectfully dissent from the Court's disposition of this case. Because the Court does not address the important constitutional questions presented, I too shall defer the expression of my views, pending the Court's inevitable review of those questions in a later case.
1
Haverford State Hospital was initially named as a defendant but was dismissed by mutual agreement. 402 F.Supp. 1039, 1043 n. 6 (ED Pa.1975).
2
The principal distinction between the sections is that a voluntary commitment is not to exceed 30 days, with successive periods not to exceed 30 days each, as long as care or observation is necessary. There is no time limitation following a voluntary admission to a facility. See id., at 1054-1055, n. 3 (dissenting opinion). See also n. 4, infra. There has been no distinction between the two sections for purposes of this lawsuit. Hence, unless otherwise indicated, we shall use the words "admitted" and "committed" interchangeably.
3
The statutes provide:
§ 402. "Voluntary admission; application, examination and acceptance; duration of admission
"(a) Application for voluntary admission to a facility for examination, treatment and care may be made by:
"(1) Any person over eighteen years of age.
"(2) A parent, guardian or individual standing in loco parentis to the person to be admitted, if such person is eighteen years of age or younger.
"(b) When an application is made, the director of the facility shall cause an examination to be made. If it is determined that the person named in the application is in need of care or observation, he may be admitted.
"(c) Except where application for admission has been made under the provisions of section 402(a)(2) and the person admitted is still eighteen years of age or younger, any person voluntarily admitted shall be free to withdraw at any time. Where application has been made under the provisions of section 402(a)(2), only the applicant or his successor shall be free to withdraw the admitted person so long as the admitted person is eighteen years of age or younger.
"(d) Each admission under the provisions of this section shall be reviewed at least annually by a committee, appointed by the director from the professional staff of the facility wherein the person is admitted, to determine whether continued care is necessary. Said committee shall make written recommendations to the director which shall be filed at the facility and be open to inspection and review by the department and such other persons as the secretary by regulation may permit.
"Where the admission is under the provisions of section 402(a)(2), the person admitted shall be informed at least each sixty days of the voluntary nature of his status at the facility." Pa.Stat.Ann., tit. 50, § 4402 (1969) (footnote omitted).
§ 403. "Voluntary commitment; application, examination and acceptance; duration of commitment
"(a) Application for voluntary commitment to a facility for examination, treatment and care may be made by:
"(1) Any person over eighteen years of age.
"(2) A parent, guardian or individual standing in loco parentis to the person to be admitted, if such person is eighteen years of age or younger.
"(b) The application shall be in writing, signed by the applicant in the presence of at least one witness. When an application is made, the director of the facility shall cause an examination to be made. If it is determined that the person named in the application is in need of care or observation, he shall be committed for a period not to exceed thirty days. Successive applications for continued voluntary commitment may be made for successive periods not to exceed thirty days each, so long as care or observation is necessary.
"(c) No person voluntarily committed shall be detained for more than ten days after he has given written notice to the director of his intention or desire to leave the facility, or after the applicant or his successor has given written notice of intention or desire to remove the detained person.
"(d) Each commitment under the provisions of this section shall be reviewed at least annually by a committee, appointed by the director from the professional staff of the facility wherein the person is cared for, to determine whether continued care and commitment is necessary. Said committee shall make written recommendations to the director which shall be filed at the facility and be open to inspection and review by the department and such other persons as the secretary by regulation shall permit.
"Where the commitment is under the provisions of section 403(a)(2), the person committed shall be informed at least each sixty days of the voluntary nature of his status at the facility." Pa.Stat.Ann., tit. 50, § 4403 (1969) (footnote omitted).
4
With respect to those voluntarily admitted, the 1966 Act explicitly distinguishes between adults, who are free to withdraw at any time, and those 18 and younger, who may withdraw only with the consent of the admitting parent or guardian. § 402(c). However, § 403(c), relating to withdrawal after voluntary commitment, does not explicitly make an age distinction, and, on its face, would allow either the person committed or the applicant (i. e., the parent or guardian) to effect the withdrawal. However, neither the court below nor the parties below have read the statute as containing this distinction. E. g., Brief for Appellants 25.
5
§ 201(2) of the 1966 Act.
6
Relevant portions of the regulations are set forth in the District Court's opinion. 402 F.Supp., at 1042-1043, n. 5.
7
Section 406 is the statute that provides for the hearing procedures to be used in an involuntary civil court commitment. Pa.Stat.Ann., tit. 50, § 4406 (1969).
8
Section 201 provides:
"Any person 14 years of age or over who believes that he is in need of treatment and substantially understands the nature of voluntary commitment may submit himself to examination and treatment under this act, provided that the decision to do so is made voluntarily. A parent, guardian, or person standing in loco parentis to a child less than 14 years of age may subject such child to examination and treatment under this act, and in so doing shall be deemed to be acting for the child. Except as otherwise authorized in this act, all of the provisions of this act governing examination and treatment shall apply."
9
Section 206 provides:
"(a) A person in voluntary inpatient treatment may withdraw at any time by giving written notice unless, as stated in section 203, he has agreed in writing at the time of his admission that his release can be delayed following such notice for a period to be specified in the agreement, provided that such period shall not exceed 72 hours.
"(b) If the person is under the age of 14, his parent, legal guardian, or person standing in loco parentis may effect his release. If any responsible party believes that it would be in the best interest of a person under 14 years of age in voluntary treatment to be withdrawn therefrom or afforded treatment constituting a less restrictive alternative, such party may file a petition in the Juvenile Division of the court of common pleas for the county in which the person under 14 years of age resides, requesting a withdrawal from or modification of treatment. The court shall promptly appoint an attorney for such minor person and schedule a hearing to determine what inpatient treatment, if any, is in the minor's best interest. The hearing shall be held within ten days of receipt of the petition, unless continued upon the request of the attorney for such minor. The hearing shall be conducted in accordance with the rules governing other Juvenile Court proceedings.
"(c) Nothing in this act shall be construed to require a facility to continue inpatient treatment where the director of the facility determines such treatment is not medically indicated. Any dispute between a facility and a county administrator as to the medical necessity for voluntary inpatient treatment of a person shall be decided by the Commissioner of Mental Health or his designate." (Footnote omitted.)
10
The following notations are found in various medical records and evaluations in the record: (a) appellee Bartley, "Admission Note: Organic Brain Syndrome with epilepsy" (App. 137a); (b) appellee Gentile, "Schizophrenia" (id., at 145a); appellee Levine, "functioning within the average range of intelligence" (id., at 167a); appellee Weand, "dull normal range of intelligence" (id., at 169a); appellee Mathews, "functioning on a lower average range of intelligence, giving evidence of bright, normal and even superior learning capacities" (id., at 175a).
11
Given our view that the Act moots the claims of the named appellees, we need not address the issue of whether the promulgation of the new regulations had previously mooted their claims.
12
Mr. Justice BRENNAN suggests that none of this is relevant to our adjudication of the case. Post, at 140-142. Implicit in this suggestion is the conclusion that in the present posture of this case certification of a class represented by these named plaintiffs would be acceptable. This approach disregards the prerequisites to class actions contained in Fed.Rule Civ.Proc. 23(a), see n. 14, infra, and pushed to its logical conclusions would do away with the standing requirement of Art. III. See, e. g., Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 550, 7 L.Ed.2d 512 (1962) (parties may not "represent a class of whom they are not a part"); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974) (class representative must "possess the same interest and suffer the same injury" as members of class).
13
Mr. Justice BRENNAN, post, at 142, seeks to minimize the extent of the changes in the law by asserting that only 20% of the plaintiff class is affected by the new Act. Even if this assertion were undisputed, it would not affect our disposition of the case. But we have no way to test the reliability of that figure. Before the new Act was passed, the distinction between mentally ill and mentally retarded was largely irrelevant for admissions purposes; hence the District Court made no findings with respect to the proportion of the class in each category, and the dissent does not indicate any support in the record for this figure, which first appears in the Reply Brief for Appellants 1 n. 2. Since this information was supplied by a party seeking a determination on the merits, it cannot be treated as a form of "admission against interest" by a litigant on appeal. In addition, the suggestion that 80% of the class remains in status quo ante completely overlooks the substantial changes wrought by the regulations, which classified on the basis of age, rather than on the basis of mental illness or mental retardation.
14
Rule 23(a) provides:
"(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."
15
Mr. Justice BRENNAN suggests that our refusal to review the merits of these claims, and our vacation of the District Court's judgment, are simply a confusing and unnecessary exaltation of form over substance. While our refusal to pass on the merits rests on discretionary considerations, we have long heeded such discretionary counsel in constitutional litigation. See Ashwander v. TVA, 297 U.S. 288, 341, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The dissent's startling statement that our insistence on plaintiffs with live claims is "purely a matter of form," post, at 142, would read into the Constitution a vastly expanded version of Rule 23 while reading Art. III out of the Constitution. The availability of thoroughly prepared attorneys to argue both sides of a constitutional question, and of numerous amici curiae ready to assist in the decisional process, even though all of them "stand like greyhounds in the slips, straining upon the start," does not dispense with the requirement that there be a live dispute between "live" parties before we decide such a question.
The dissent, post, at 137, attaches great weight to the fact that the State argues that the case is not moot. As we have pointed out in the text, infra, at 136, the fact that the parties desire a decision on the merits does not automatically entitle them to receive such a decision. It is not at all unusual for all parties in a case to desire an adjudication on the merits when the alternative is additional litigation; but their desires can be scarcely thought to dictate the result of our inquiry into whether the merits should be reached. The dissent's additional reliance on the "numerous amici (who have requested) an authoritative constitutional ruling . . ." post, at 140, overlooks the fact that briefs for no fewer than eight of these amici argue that the case is moot or suggest that the case be remanded for consideration of the intervening legislation.
16
Upon promulgation of the regulations, the named appellees received, inter alia, the right to institute a "section 406" involuntary commitment proceeding in court within two business days. Under § 406, a judicial hearing is held after notice to the parties; counsel is provided for indigents. It is this right to a hearing that was the gravamen of appellees' complaint. App. 21a-23a, (complaint P 46).
1
The statutory modification upon which the Court principally relies for mootness pertains solely to mentally ill children 14 or older, whereas the class consists of all children who are mentally ill and retarded. Since this distinction was irrelevant when the action commenced, the complaint does not inform us whether the named class members, while older than 14, are mentally ill or mentally retarded. Thus, it is accurate for the Court to state that "insofar as the record indicates," all the named children are mentally ill and consequently fall within the purview of the 1976 statutory amendment. Ante, at 128. But, since the record barely scratches the surface in this regard, it is possible that some of the children have been committed because of retardation. If so, the Court's supposition that the claims of the named parties are mooted is inaccurate and presumably can be corrected by the District Court on remand.
2
In brief, the District Court mandated a probable-cause hearing within 72 hours of the initial detention followed by a complete postcommitment hearing within two weeks thereafter. 402 F.Supp. 1039, 1049 (ED Pa.1975).
3
The September 1, 1973, regulations, on which the Court additionally places some reliance, are even less relevant to the proper disposition of this case. Under these regulations, the procedural rights of juveniles 13 or older underwent change following commencement of this suit. These older juveniles now must be informed of their rights within 24 hours of commitment and must be given the telephone number of an attorney. Should the retarded or mentally ill child be capable and willing to take the initiative, he may object to this commitment, contact his lawyer, and request a hearing. The hospital then can file an involuntary commitment petition, whereby the child remains in the institution pending the hearing on his commitment; the regulations fix no time period in which this hearing must be held. In its consideration of this case, the District Court was fully aware of these regulations, but concluded that they do not resolve the constitutional infirmities that it found to inhere in Pennsylvania's statutory scheme. Id., at 1042-1043, n. 5. In particular, the regulations fall far short of satisfying the lower court's judgment in its failure to guarantee to every child the nonwaivable guidance of an attorney and a prompt commitment hearing within a specified time period. For this reason, the Court's concern that the class is subdivided into "a bewildering lineup of permutations and combinations", ante, at 130, actually is of no constitutional significance to the decision of this suit. For even taking the regulations into account, all the children who can be committed by their parents continue to be held pursuant to procedures as to which plaintiffs complain, and as to which the District Court concluded, constitutional standards are not satisfied.
4
The 1976 Act does provide that, with respect to all children, a "responsible party" may step forward and challenge a child's commitment by filing a petition in the juvenile court requesting the appointment of an attorney and the convening of a hearing. Mental Health Procedures Act § 206(b) (1976). Given that the most likely "responsible party," the child's parents, are the persons seeking his institutionalization, Pennsylvania itself recognizes that this amounts to "no real change in the law" and to no "additional procedural protections." Reply Brief for Appellants 1-2, n. 3.
5
See, e. g., Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Singleton v. Wulff, 428 U.S. 106, 117-118, 96 S.Ct. 2868, 2875, 49 L.Ed.2d 826 (1976) (opinion of Blackmun, J.).
6
On several occasions, the Court complains that my position, in characterizing today's action as meaningless and wasteful, fails to give due consideration to the requirements of Art. III and Rule 23. Ante, at 131, n. 12, 134 n. 15. This contention is seriously misleading. When the class was duly certified in 1974, both Rule 23 and Art. III were properly complied with as I agree they must be. The Rule 23 issue is no longer before us, for we cannot, some three years later, sua sponte and over the objection of all parties, challenge compliance with a Rule of Civil Procedure, unless, of course, noncompliance or some intervening circumstance serves to undercut our jurisdiction. That is not the case here, however, for both the majority and I are in agreement that no jurisdictional defect is to be found. In sum, therefore, the inquiry applicable to this case is the following: Does this Court properly exercise its discretion through its remand to the District Court when (1) our Art. III jurisdiction is sound, and (2) the class plaintiff was properly certified pursuant to Federal Rule, and (3) no party objected or today objects to the certification, and (4) the class continues to possess live claims and a District Court judgment that are unaffected by any constitutionally relevant changes in state law, and (5) the substance of the constitutional contentions continue to be litigated cogently by both parties? When these factors are fairly taken into account, the conclusion is plain that today's action can be justified neither by the quasi-jurisdictional language which the Court needlessly includes in its opinion, nor by sound, practical considerations of discretion.
| 89
|
431 U.S. 291
97 S.Ct. 1756
52 L.Ed.2d 324
Jerry Lee SMITH, Petitioner,v.UNITED STATES.
No. 75-1439.
Argued Dec. 8, 1976.
Decided May 23, 1977.
Syllabus
Petitioner, who had been indicted in the Southern District of Iowa for mailing obscene materials in violation of 18 U.S.C. § 1461, unavailingly sought to propound questions to the jury panel on voir dire relating to the panel members' knowledge of the contemporary community standards in that District with regard to the depiction of sex and nudity. The case proceeded to trial and at the close of the Government's case and later, petitioner unsuccessfully moved for a directed verdict of acquittal on the grounds, inter alia, that the Iowa obscenity statute in effect at the time of petitioner's conduct, which proscribed only the dissemination of obscene materials to minors, set forth the applicable community standard, and that the prosecution had not proved that the materials at issue had offended that standard. Petitioner was convicted. The Court of Appeals affirmed, concluding (1) that petitioner's proposed community standards questions were impermissible since they concerned the ultimate question of guilt or innocence rather than juror qualifications, and (2) that the issue of offense to contemporary community standards was a federal question and was not to be determined on the basis of the state obscenity law. Held:
1. State law cannot define the contemporary community standards for appeal to the prurient interest and patent offensiveness that under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, are applied in determining whether or not material is obscene, and the Iowa obscenity statute is therefore not conclusive as to those standards. In federal prosecutions, such as this for violation of § 1461, those issues are fact questions for the jury, to be judged in light of its understanding of contemporary community standards. Pp. 299-308.
(a) Though state legislatures are not completely foreclosed from setting substantive limitations for obscenity cases, they cannot declare what community standards shall be, any more than they could undertake to define "reasonableness." Cf. Hamling v. United States, 418 U.S. 87, 104-105, 94 S.Ct. 2887, 2900-2901, 41 L.Ed.2d 590. Pp. 301-303.
(b) The community standards aspects of § 1461 implicate federal, not state, law. It is not material that the mailings here were solely intrastate, since § 1461 was enacted under Congress' constitutional postal power, not the commerce power. Pp. 303-305.
(c) Obscenity convictions remain reviewable on various grounds. Pp, 305-306.
(d) This Court's holding that the Iowa statute (which was properly admitted into evidence) is not conclusive on the issue of contemporary community standards does not nullify state law, but a State's right not to regulate in the obscenity field cannot correlatively compel the Federal Government to allow the mails to be used to send obscene materials into that State. Pp. 306-307.
2. The District Court did not abuse its discretion in refusing to ask the questions tendered by petitioner for voir dire about the jurors' understanding of community standards, which were no more appropriate than a request for a description of the meaning of "reasonableness" would have been. P. 308.
3. Section 1461 is not unconstitutionally vague as applied here since the type of conduct covered by the statute can be ascertained with sufficient ease to avoid due process pitfalls. Cf. Hamling v. United States, supra. Pp. 308-309.
Affirmed.
Tefft W. Smith, Chicago, Ill., for petitioner.
Howard E. Shapiro, Washington, D. C., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), this Court rejected a plea for a uniform national standard as to what appeals to the prurient interest and as to what is patently offensive; the Court held, instead, that these essentially were questions of fact to be measured by contemporary standards of the community. Id., at 30-34, 93 S.Ct., at 2618-2620. The instant case presents the issue of the constitutional effect of state law that leaves unregulated the distribution of obscene material to adults, on the determination of contemporary community standards in a prosecution under 18 U.S.C. § 1461 for a mailing that is wholly intrastate. The case also raises the question whether § 1461 is unconstitutionally vague as applied in these circumstances, and the question whether the trial court, during the voir dire of prospective jurors, correctly refused to ask proffered questions relating to community standards.
2
* Between February and October 1974 petitioner, Jerry Lee Smith, knowingly caused to be mailed various materials from Des Moines, Iowa, to post office box addresses in Mount Ayr and Guthrie Center, two communities in southern Iowa. This was done at the written request of postal inspectors using fictitious names. The materials so mailed were delivered through the United States postal system to the respective postmasters serving the addresses. The mailings consisted of (1) issues of "Intrigue" magazine, depicting nude males and females engaged in masturbation, fellatio, cunnilingus, and sexual intercourse; (2) a film entitled "Lovelace," depicting a nude male and a nude female engaged in masturbation and simulated acts of fellatio, cunnilingus, and sexual intercourse; and (3) a film entitled "Terrorized Virgin," depicting two nude males and a nude female engaged in fellatio, cunnilingus, and sexual intercourse.
II
3
For many years prior to 1974 the statutes of Iowa made it a misdemeanor to sell or offer to sell or to give away "any obscene, lewd, indecent, lascivious, or filthy book, pamphlet, paper, . . . picture, photograph, writing . . ." or to deposit in any post office within Iowa any article of that kind. Iowa Code §§ 725.5 and 725.6 (1973).
4
In 1973, however, the Supreme Court of Iowa, in response to the standards enunciated in Miller v. California, supra, unanimously held that a related and companion Iowa statute, § 725.3 of the 1973 Code, prohibiting the presentation of any obscene or immoral drama, play, exhibition, or entertainment, was unconstitutionally vague and overbroad. State v. Wedelstedt, 213 N.W.2d 652.1 Wedelstedt, at least by implication and we so assume invalidated §§ 725.5 and 725.6 as well.
5
On July 1, 1974, Laws of Iowa 1974, cc. 1267 and 1268, became effective. These specifically repealed §§ 725.3, 725.5, and 725.6 of the 1973 Code. In addition, however, c. 1267 (thereafter codified as the first 10 sections of c. 725 of the 1975 Iowa Code) defined, among other things, "obscene material," and made it "a public offense" to disseminate obscene material to minors (defined as persons "under the age of eighteen"). Dissemination of obscene material to adults was not made criminal or even proscribed. Section 92 of c. 1267 (now § 725.9 of the 1975 Code) insured that the law would be applied uniformly throughout the State, and that no lesser governmental unit would impose more stringent regulations on obscene material.
6
In 1976, the Iowa Legislature enacted a "complete revision" of the State's "substantive criminal laws." This is entitled the "Iowa Criminal Code" and is generally effective January 1, 1978. The existing definition of "obscene material" remains unchanged, but a new provision, § 2804 of the Criminal Code, Iowa Code Ann. (Spec. Pamphlet 1977), although limited in scope, applies by its terms to adults. It reads:
7
"Any person who knowingly sells or offers for sale material depicting a sex act involving sado-masochistic abuse, excretory functions, a child, or bestiality which the average adult taking the material as a whole in applying contemporary community standards would find that it appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political, or artistic value shall, upon conviction be guilty of a simple misdemeanor."
8
In summary, therefore, we have in Iowa (1) until 1973 state statutes that proscribed generally the dissemination of obscene writings and pictures; (2) the judicial nullification of some of those statutory provisions in that year for reasons of overbreadth and vagueness; (3) the enactment, effective July 1, 1974, of replacement obscenity statutes restricted in their application to dissemination to minors; and (4) the enactment in 1976 of a new Code, effective in 1978, with obscenity provisions, somewhat limited in scope, but not restricted in application to dissemination to minors.
9
Petitioner's mailings, described above and forming the basis of his federal prosecution, took place in 1974, after the theretofore existing Iowa statutes relating to obscene material had been nullified by Wedelstedt, but obviously before the 1976 legislation imposing misdemeanor liability with respect to certain transactions with adults becomes effective. Because there is no contention that the materials petitioner mailed went to any minor, the 1974 legislation has no application to his case. And the 1976 legislation, of course, has no effect on petitioner's criminal liability. Cf. Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).
10
Thus, what petitioner did clearly was not a violation of state law at the time he did it. It is to be observed, also, that there is no suggestion that petitioner's mailings went to any nonconsenting adult or that they were interstate.
III
11
Petitioner was indicted on seven counts of violating 18 U.S.C. § 1461, which prohibits the mailing of obscene materials.3 He pleaded not guilty. At the start of his trial petitioner proposed and submitted six questions for voir dire.4 The court accepted in substance and utilized the first question; this was designed to reveal whether any juror was connected with an organization devoted to regulating or banning obscene materials. The court declined to ask the other five. One of the questions made inquiry as to whether the jurors had any knowledge of contemporary community standards in the Southern District of Iowa with regard to the depiction of sex and nudity. Two sought to isolate the source of the jurors' knowledge and their understanding of those standards. The remaining two would have explored the jurors' knowledge of Iowa law on the subject.
12
At the trial the Government introduced into evidence the actual materials covered by the indictment. It offered nothing else on the issue of obscenity vel non. Petitioner did not testify. Instead, in defense, he introduced numerous sexually explicit materials that were available for purchase at "adult" bookstores in Des Moines and Davenport, Iowa, several advertisements from the Des Moines Register and Tribune, and a copy of what was then c. 725 of the Iowa Code, prohibiting the dissemination of "obscene material" only to minors. At the close of the Government's case, and again at the close of all the evidence, petitioner moved for a directed verdict of acquittal on the grounds, inter alia, that the Iowa obscenity statute, proscribing only the dissemination of obscene materials to minors, set forth the applicable community standard, and that the prosecution had not proved that the materials at issue offended that standard.
13
The District Court denied those motions and submitted the case to the jury. The court instructed the jury that contemporary community standards were set by what is in fact accepted in the community as a whole. In making that determination, the jurors were entitled to draw on their own knowledge of the views of the average person in the community as well as the evidence presented as to the state law on obscenity and as to materials available for purchase. App. 22-23.
14
The jury found petitioner guilty on all seven counts. He was sentenced to concurrent three-year terms of imprisonment, all but three months of which were suspended, and three years' probation.
15
In his motion for a new trial, petitioner again asserted that Iowa law defined the community standard in a § 1461 prosecution. In denying this motion, the District Court held that § 1461 was "a federal law which neither incorporates nor depends upon the laws of the states," App. 33; the federal policy was simply different in this area. Furthermore, the court observed, Iowa's decision not to regulate distribution of obscene material did not mean that the people of Iowa necessarily "approve(d) of the permitted conduct," ibid.; whether they did was a question of fact for the jury. The court rejected petitioner's argument that it was error not to ask the jurors the question about the extent of their knowledge of contemporary community standards. It held that the jurors were entitled to draw on their own knowledge; voir dire on community standards would be no more appropriate than voir dire on the jurors' concept of "reasonableness." The court refused to hold that the Government was required to introduce evidence on a community standard in order to sustain its burden of proof. The materials introduced "can and do speak for themselves." Id., at 34. The court did not address petitioner's vagueness point.5
16
The United States Court of Appeals for the Eighth Circuit, by per curiam opinion, agreed with the District Court that the questions submitted by petitioner on community standards, except for the first, were impermissible, since they concerned the ultimate question of guilt or innocence rather than juror qualification. The court noted, however, that it was not holding that no questions whatsoever could be asked in that area. With respect to the effect of state law, the court held that the issue of offense to contemporary community standards was a federal question, and was to be determined by the jury in a federal prosecution. The court noted the admission of Iowa's obscenity statute into evidence but stated that this was designed to give the jury knowledge of the State's policy on obscenity when it determined the contemporary community standard. The state policy was not controlling, since the determination was for the jury. The conviction, therefore, was affirmed.
17
We granted certiorari in order to review the relationship between state legislation regulating or refusing to regulate the distribution of obscene material, and the determination of contemporary community standards in a federal prosecution. 426 U.S. 946, 96 S.Ct. 3164, 49 L.Ed.2d 1183 (1976).
IV
18
The "basic guidelines" for the trier of fact in a state obscenity prosecution were set out in Miller v. California in the form of a three-part test:
19
"(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 (citations omitted)
20
In two companion cases, the Court held that the Miller standards were equally applicable to federal legislation. United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 129-130, 93 S.Ct. 2665, 2669-2670, 37 L.Ed.2d 500 (1973) (importation of obscene material, 19 U.S.C. § 1305(a)); United States v. Orito, 413 U.S. 139, 145, 93 S.Ct. 2674, 2679, 37 L.Ed.2d 513 (1973) (movement of obscene material in interstate commerce, 18 U.S.C. § 1462). In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), it held, specifically, that the Miller standards applied in a § 1461 prosecution.
21
The phrasing of the Miller test makes clear that contemporary community standards take on meaning only when they are considered with reference to the underlying questions of fact that must be resolved in an obscenity case.6 The test itself shows that appeal to the prurient interest is one such question of fact for the jury to resolve. The Miller opinion indicates that patent offensiveness is to be treated in the same way. 413 U.S., at 26, 30, 93 S.Ct., at 2616, 2618. See Hamling v. United States, 418 U.S., at 104-105, 94 S.Ct., at 2900-2901.7 The fact that the jury must measure patent offensiveness against contemporary community standards does not mean, however, that juror discretion in this area is to go unchecked. Both in Hamling and in Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), the Court noted that part (b) of the Miller test contained a substantive component as well. The kinds of conduct that a jury would be permitted to label as "patently offensive" in a § 1461 prosecution are the "hard core" types of conduct suggested by the examples given in Miller.8 See Hamling v. United States, 418 U.S., at 114, 94 S.Ct., at 2906; cf. Jenkins v. Georgia, 418 U.S., at 160-161, 94 S.Ct., at 2754-2755. Literary, artistic, political, or scientific value, on the other hand, is not discussed in Miller in terms of contemporary community standards. See generally F. Schauer, The Law of Obscenity 123-124 (1976).
22
The issue we must resolve is whether the jury's discretion to determine what appeals to the prurient interest and what is patently offensive is circumscribed in any way by a state statute such as c. 725 of the Iowa Code. Put another way, we must decide whether the jury is entitled to rely on its own knowledge of community standards, or whether a state legislature (or a smaller legislative body) may declare what the community standards shall be, and, if such a declaration has been made, whether it is binding in a federal prosecution under § 1461.
23
Obviously, a state legislature would not be able to define contemporary community standards in a vacuum. Rather, community standards simply provide the measure against which the jury decides the questions of appeal to prurient interest and patent offensiveness. In Hamling v. United States, the Court recognized the close analogy between the function of "contemporary community standards" in obscenity cases and "reasonableness" in other cases:
24
"A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a 'reasonable' person in other areas of the law." 418 U.S., at 104-105, 94 S.Ct., at 2901.
25
It would be just as inappropriate for a legislature to attempt to freeze a jury to one definition of reasonableness as it would be for a legislature to try to define the contemporary community standard of appeal to prurient interest or patent offensiveness, if it were even possible for such a definition to be formulated.
26
This is not to say that state legislatures are completely foreclosed from enacting laws setting substantive limitations for obscenity cases. On the contrary, we have indicated on several occasions that legislation of this kind is permissible. See Hamling v. United States, 418 U.S., at 114, 94 S.Ct., at 2906; Miller v. California, 413 U.S., at 25, 93 S.Ct., at 2615. State legislation must still define the kinds of conduct that will be regulated by the State. For example, the Iowa law in effect at the time this prosecution was instituted was to the effect that no conduct aimed at adults was regulated.9 At the other extreme, a State might seek to regulate all the hard-core pornography that it constitutionally could. The new Iowa law, which will regulate only material "depicting a sex act involving sado-masochistic abuse, excretory functions, a child, or bestiality," provides an example of an intermediate approach. Iowa Criminal Code § 2804.
27
If a State wished to adopt a slightly different approach to obscenity regulation, it might impose a geographic limit on the determination of community standards by defining the area from which the jury could be selected in an obscenity case, or by legislating with respect to the instructions that must be given to the jurors in such cases. In addition, the State might add a geographic dimension to its regulation of obscenity through the device of zoning laws. Cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). It is evident that ample room is left for state legislation even though the question of the community standard to apply, when appeal to prurient interest and patent offensiveness are considered, is not one that can be defined legislatively.
28
An even stronger reason for holding that a state law regulating distribution of obscene material cannot define contemporary community standards in the case before us is the simple fact that this is a federal prosecution under § 1461. The Court already has held, in Hamling, that the substantive conduct encompassed by § 1461 is confined to "the sort of 'patently offensive representations or descriptions of that specific "hard core" sexual conduct given as examples in Miller v. California.' " 418 U.S., at 114, 94 S.Ct., at 2906. The community standards aspects of § 1461 likewise present issues of federal law, upon which a state statute such as Iowa's cannot have conclusive effect.10 The kinds of instructions that should be given to the jury are likewise a federal question. For example, the Court has held that § 1461 embodies a requirement that local rather than national standards should be applied.11 Hamling v. United States, supra. Similarly, obscenity is to be judged according to the average person in the community, rather than the most prudish or the most tolerant. Hamling v. United States, supra; Miller v. California, supra; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Both of these substantive limitations are passed on to the jury in the form of instructions.
29
The fact that the mailings in this case were wholly intrastate is immaterial for a prosecution under § 1461. That statute was one enacted under Congress' postal power, granted in Art. I, § 8, cl. 7, of the Constitution, and the Postal Power Clause does not distinguish between interstate and intrastate matters. This Court consistently has upheld Congress' exercise of that power to exclude from the mails materials that are judged to be obscene. See, e. g., Ex parte Jackson, 96 U.S. 727, 736, 24 L.Ed. 877 (1878); Public Clearing House v. Coyne, 194 U.S. 497, 507-508, 24 S.Ct. 789, 793, 48 L.Ed. 1092 (1904) (power to exclude from the mail "information of a character calculated to debauch the public morality"); Roth v. United States, supra; United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). See also In re Rapier, 143 U.S. 110, 12 S.Ct. 374, 36 L.Ed. 93 (1892).12
30
Our decision that contemporary community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in their community does not mean, as has been suggested, that obscenity convictions will be virtually unreviewable. We have stressed before that juries must be instructed properly, so that they consider the entire community and not simply their own subjective reactions, or the reactions of a sensitive or of a callous minority. See Miller v. California, 413 U.S., at 30, 93 S.Ct., at 2618. The type of conduct depicted must fall within the substantive limitations suggested in Miller and adopted in Hamling with respect to § 1461. Cf. Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). The work also must lack serious literary, artistic, political, or scientific value before a conviction will be upheld; this determination is particularly amenable to appellate review. Finally, it is always appropriate for the appellate court to review the sufficiency of the evidence. Cf. Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966).
31
Petitioner argues that a decision to ignore the Iowa law will have the practical effect of nullifying that law. We do not agree. In the first place, the significance of Iowa's decision in 1974 not to regulate the distribution of obscene materials to adults is open to question. Iowa may have decided that the resources of its prosecutors' offices should be devoted to matters deemed to have greater priority than the enforcement of obscenity statutes. Such a decision would not mean that Iowa affirmatively desired free distribution of those materials; on the contrary, it would be consistent with a hope or expectation on the State's part that the Federal Government's prosecutions under statutes such as § 1461 would be sufficient for the State's purposes. The State might also view distribution over the counter as different from distribution through the mails. It might conclude that it is easier to keep obscene materials out of the hands of minors and unconsenting adults in retail establishments than it is when a letter or package arrives at a private residence. Furthermore, the history of the Iowa law suggests that the State may have left distribution to consenting adults unregulated simply because it was not then able to arrive at a compromise statute for the regulation of obscenity.
32
Arguments similar to petitioner's "nullification" thesis were made in cases that followed Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). In United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), the question was whether the United States constitutionally might prohibit the importation of obscene material that was intended solely for private, personal use and possession. See 19 U.S.C. § 1305(a). Stanley had upheld the individual's right to possess obscene material in the home, and the argument was made that this right would be virtually meaningless if the Government could prevent importation of, and hence access to, the obscene material. 413 U.S., at 126-127, 93 S.Ct., at 2667-2668. The Court held that Stanley had been based on the privacy of the home, and that it represented a considered line of demarcation in the obscenity area. Id., at 127, 93 S.Ct., at 2668. Consequently, despite the incidental effect that the importation prohibition had on the privacy right to possess obscene material in the home, the Court upheld the statute. A similar result was reached, in the face of similar argument, in United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973). There, 18 U.S.C. § 1462, the statute prohibiting knowing transportation of obscene material in interstate commerce, was at issue. The Court held that Stanley did not create a right to receive, transport, or distribute obscene material, even though it had established the right to possess the material in the privacy of the home. 413 U.S., at 141, 93 S.Ct., at 2676. See also United States v. Reidel, supra.
33
In this case, petitioner argues that the Court has recognized the right of States to adopt a laissez-faire attitude toward regulation of pornography, and that a holding that § 1461 permits a federal prosecution will render the States' right meaningless. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 64, 93 S.Ct. 2628, 2638, 37 L.Ed.2d 446 (1973); United States v. Reidel, 402 U.S., at 357, 91 S.Ct., at 1413. Just as the individual's right to possess obscene material in the privacy of his home, however, did not create a correlative right to receive, transport, or distribute the material, the State's right to abolish all regulation of obscene material does not create a correlative right to force the Federal Government to allow the mails or the channels of interstate or foreign commerce to be used for the purpose of sending obscene material into the permissive State.
34
Even though the State's law is not conclusive with regard to the attitudes of the local community on obscenity, nothing we have said is designed to imply that the Iowa statute should not have been introduced into evidence at petitioner's trial. On the contrary, the local statute on obscenity provides relevant evidence of the mores of the community whose legislative body enacted the law. It is quite appropriate, therefore, for the jury to be told of the law and to give such weight to the expression of the State's policy on distribution as the jury feels it deserves. We hold only that the Iowa statute is not conclusive as to the issues of contemporary community standards for appeal to the prurient interest and patent offensiveness. Those are questions for the jury to decide, in its traditional role as factfinder. United States v. Danley, 523 F.2d 369 (C.A.9 1975), cert. denied, 424 U.S. 929, 96 S.Ct. 1143, 47 L.Ed.2d 338 (1976).
V
35
A. We also reject petitioner's arguments that the prospective jurors should have been asked about their understanding of Iowa's community standards and Iowa law, and that § 1461 was unconstitutionally vague as applied to him. The particular inquiries requested by petitioner would not have elicited useful information about the jurors' qualifications to apply contemporary community standards in an objective way. A request for the jurors' description of their understanding of community standards would have been no more appropriate than a request for a description of the meaning of "reasonableness." Neither term lends itself to precise definition. This is not to preclude other more specific and less conclusory questions for voir dire. For example, it might be helpful to know how long a juror has been a member of the community, how heavily the juror has been involved in the community, and with what organizations having an interest in the regulation of obscenity the juror has been affiliated. The propriety of a particular question is a decision for the trial court to make in the first instance. In this case, however, we cannot say that the District Court abused its discretion in refusing to ask the specific questions tendered by petitioner.
36
B. Neither do we find § 1461 unconstitutionally vague as applied here. Our construction of the statute flows directly from the decisions in Hamling, Miller, Reidel, and Roth. As construed in Hamling, the type of conduct covered by the statute can be ascertained with sufficient ease to avoid due process pitfalls. Similarly, the possibility that different juries might reach different conclusions as to the same material does not render the statute unconstitutional. Roth v. United States, 354 U.S., at 492 n. 30, 77 S.Ct., at 1313; Miller v. California, 413 U.S., at 26 n. 9, 93 S.Ct., at 2616. We find no vagueness defect in the statute attributable to the fact that federal policy with regard to distribution of obscene material through the mail was different from Iowa policy with regard to the intrastate sale of like material.
VI
37
Since the Iowa law on obscenity was introduced into evidence, and the jurors were told that they could consider it as evidence of the community standard, petitioner received everything to which he was entitled. To go further, and to make the state law conclusive on the issues of appeal to prurient interest and patent offensiveness, in a federal prosecution under § 1461, would be inconsistent with our prior cases. We hold that those issues are fact questions for the jury, to be judged in light of the jurors' understanding of contemporary community standards. We also hold that § 1461 is not unconstitutionally vague as so applied, and that petitioner's proposed voir dire questions were not improperly refused.
38
The judgment of the Court of Appeals is affirmed.
39
It is so ordered.
40
Mr. Justice POWELL, concurring.
41
I join the Court's opinion and write to express my understanding of the relative narrowness of the questions presented.
42
At the time petitioner engaged in the conduct at issue here, Iowa law placed no limits on the distribution of obscene materials to adults. If Iowa law governs in this federal prosecution, petitioner's conviction must be reversed. Our decision therefore turns on the answers to two questions, one requiring interpretation of a federal statute, the other calling for application of the constitutional standards announced in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
43
The first question, easily answered, is whether Congress intended to incorporate state obscenity statutes into 18 U.S.C. § 1461. I agree with the Court's opinion, ante, at 303-304, and n. 10, that no such intent existed.
44
The federal statute goes to the constitutional limit, reaching all pornographic materials not protected under the First Amendment. See Marks v. United States, 430 U.S. 188, 195, 97 S.Ct. 990, 994, 51 L.Ed.2d 260 (1977). Under Miller local community standards play an important role in defining that limit. The second question, therefore, is whether "community standards," as that concept is used in Miller, necessarily follow changes in a State's statutory law. Again, I agree with the Court's conclusion that they do not. A community may still judge that materials are patently offensive and that they appeal to the prurient interest even though its legislature has chosen, for whatever reason, not to apply state criminal sanctions to those who distribute them. The state statute is relevant evidence of evolving community standards, and it was properly brought to the attention of the jury here. But it is not controlling in a prosecution under federal law.
45
I emphasize, however, that this case presents no question concerning the limits on a State's power to design its obscenity statutes as it sees fit or to define community standards as it chooses for purposes of applying its own laws. Within the boundaries staked out by Miller, the States retain broad latitude in this respect.
46
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
47
Petitioner was convicted after a jury trial in the United States District Court for the Southern District of Iowa of mailing obscene material in violation of 18 U.S.C. § 1461. The Court of Appeals for the Eighth Circuit affirmed.
48
I would reverse. I have previously stated my view that this statute is " 'clearly overbroad and unconstitutional on its face,' " see, e. g., Millican v. United States, 418 U.S. 947, 948, 94 S.Ct. 3233, 41 L.Ed.2d 1177 (1974) (dissenting from denial of certiorari) quoting United States v. Orito, 413 U.S. 139, 148, 93 S.Ct. 2674, 2680, 37 L.Ed.2d 513 (1973) (dissenting opinion).
49
Mr. Justice STEVENS, dissenting.
50
Petitioner has been sentenced to prison for violating a federal statute enacted in 1873.1 In response to a request, he mailed certain pictures and writings from one place in Iowa to another. The transaction itself offended no one2 and violated no Iowa law. Nevertheless, because the materials proved "offensive" to third parties who were not intended to see them, a federal crime was committed.
51
Although the Court's affirmance of this conviction represents a logical extension of recent developments in this area of the law, it sharply points up the need for a principled re-examination of the premises on which it rests. Because so much has already been written in this area, I shall merely endeavor to identify certain weaknesses in the Court's "offensiveness" touchstone3 and then to explain why I believe criminal prosecutions are an unacceptable method of abating a public nuisance which is entitled to at least a modicum of First Amendment protection.
52
* A federal statute defining a criminal offense should prescribe a uniform standard applicable throughout the country. This proposition is so obvious that it was not even questioned during the first 90 years of enforcement of the Comstock Act under which petitioner was prosecuted.4 When the reach of the statute is limited by a constitutional provision, it is even more certain that national uniformity is appropriate.5 Nevertheless, in 1963, when Mr. Chief Justice Warren concluded that a national standard for judging obscenity was not provable, he suggested the substitution of community standards as an acceptable alternative.6 He thereby planted the seed which eventually blossomed into holdings such as Miller,7 Hamling,8 and today's pronouncement that the relevant standard "is not one that can be defined legislatively." Ante, at 303.
53
The conclusion that a uniformly administered national standard is incapable of definition or administration is an insufficient reason for authorizing the federal courts to engage in ad hoc adjudication of criminal cases. Quite the contrary, it is a reason for questioning the suitability of criminal prosecution as the mechanism for regulating the distribution of erotic material.
54
The most significant reasons for the failure to define a national standard for obscenity apply with equal force to the use of local standards. Even the most articulate craftsman finds it easier to rely on subjective reaction rather than concrete descriptive criteria as a primary definitional source.9 The diversity within the Nation which makes a single standard of offensiveness impossible to identify is also present within each of the so-called local communities in which litigation of this kind is prosecuted.10 Indeed, in Miller itself, the jury was asked to apply the contemporary community standard of California. A more culturally diverse State of the Union hardly can exist, and yet its standard for judging obscenity was assumed to be more readily ascertainable than a national standard.
55
Indeed, in some ways the community standard concept is even more objectionable than a national standard. As we have seen in prior cases, the geographic boundaries of the relevant community are not easily defined, and sometimes appear to be subject to elastic adjustment to suit the needs of the prosecutor.11 Moreover, although a substantial body of evidence and decisional law concerning the content of a national standard could have evolved through its consistent use, the derivation of the relevant community standard for each of our countless communities is necessarily dependent on the perceptions of the individuals who happen to compose the jury in a given case.
56
The question of offensiveness to community standards, whether national or local, is not one that the average juror can be expected to answer with evenhanded consistency. The average juror may well have one reaction to sexually oriented materials in a completely private setting and an entirely different reaction in a social context. Studies have shown that an opinion held by a large majority of a group concerning a neutral and objective subject has a significant impact in distorting the perceptions of group members who would normally take a different position.12 Since obscenity is by no means a neutral subject, and since the ascertainment of a community standard is such a subjective task, the expression of individual jurors' sentiments will inevitably influence the perceptions of other jurors, particularly those who would normally be in the minority.13 Moreover, because the record never discloses the obscenity standards which the jurors actually apply, their decisions in these cases are effectively unreviewable by an appellate court.14 In the final analysis, the guilt or innocence of a criminal defendant in an obscenity trial is determined primarily by individual jurors' subjective reactions to the materials in question rather than by the predictable application of rules of law.
57
This conclusion is especially troubling because the same image whether created by words, sounds, or pictures may produce such a wide variety of reactions. As Mr. Justice Harlan noted: (It is) often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because government officials (or jurors) cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual." Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284. In my judgment, the line between communications which "offend" and those which do not is too blurred to identify criminal conduct. It is also too blurred to delimit the protections of the First Amendment.
II
58
Although the variable nature of a standard dependent on local community attitudes is critically defective when used to define a federal crime, that very flexibility is a desirable feature of a civil rule designed to protect the individual's right to select the kind of environment in which he wants to live.
59
In his dissent in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, Mr. Chief Justice Warren reminded us that obscene material "may be proscribed in a number of ways," id., at 201, 84 S.Ct., at 1685, and that a lesser standard of review is required in civil cases than in criminal. Moreover, he identified a third dimension in the obscenity determination that is ignored in the Court's current formulation of the standard:
60
"In my opinion, the use to which various materials are put not just the words and pictures themselves must be considered in determining whether or not the materials are obscene. A technical or legal treatise on pornography may well be inoffensive under most circumstances but, at the same time, 'obscene' in the extreme when sold or displayed to children." Ibid. (footnote omitted).
61
The standard now applied by the Court focuses its attention on the content of the materials and their impact on the average person in the community. But that impact is not a constant; it may vary widely with the use to which the materials are put. As Mr. Justice Sutherland wrote in a different context, a "nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard."15 Whether a pig or a picture is offensive is a question that cannot be answered in the abstract.
62
In Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498, the Court held "that obscenity is not within the area of constitutionally protected speech or press." That holding rests, in part, on the assumed premise that all communications within the protected area are equally immune from governmental restraint, whereas those outside that area are utterly without social value and, hence, deserving of no protection. Last Term the Court expressly rejected that premise. Young v. American Mini Theatres, Inc., 427 U.S. 50, 66-71, 96 S.Ct. 2440, 2450-2452, 49 L.Ed.2d 310; Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 771-773, 96 S.Ct. 1817, 1830-1831, 48 L.Ed.2d 346. The fact that speech is protected by the First Amendment does not mean that it is wholly immune from state regulation. Although offensive or misleading statements in a political oration cannot be censored, offensive language in a courtroom16 or misleading representations in a securities prospectus may surely be regulated. Nuisances such as sound trucks17 and erotic displays in a residential area may be abated under appropriately flexible civil standards even though the First Amendment provides a shield against criminal prosecution.
63
As long as the government does not totally suppress protected speech and is faithful to its paramount obligation of complete neutrality with respect to the point of view expressed in a protected communication, I see no reason why regulation of certain types of communication may not take into account obvious differences in subject matter. See Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770. It seems to me ridiculous to assume that no regulation of the display of sexually oriented material is permissible unless the same regulation could be applied to political comment.18 On the other hand, I am not prepared to rely on either the average citizen's understanding of an amorphous community standard or on my fellow judges' appraisal of what has serious artistic merit as a basis for deciding what one citizen may communicate to another by appropriate means.19
64
I do not know whether the ugly20 pictures in this record have any beneficial value. The fact that there is a large demand for comparable materials indicates that they do provide amusement or information, or at least satisfy the curiosity of interested persons.21 Moreover, there are serious well-intentioned people who are persuaded that they serve a worthwhile purpose.22 Others believe they arouse passions that lead to the commission of crimes; if that be true, surely there is a mountain of material just within the protected zone that is equally capable of motivating comparable conduct.23 Moreover, the dire predictions about the baneful effects of these materials are disturbingly reminiscent of arguments formerly made about the availability of what are now valued as works of art. In the end, I believe we must rely on the capacity of the free marketplace of ideas to distinguish that which is useful or beautiful from what which is ugly or worthless.24
65
In this case the petitioner's communications were intended to offend no one. He could hardly anticipate that they would offend the person who requested them. And delivery in sealed envelopes prevented any offense to unwilling third parties. Since his acts did not even constitute a nuisance, it necessarily follows, in my opinion, that they cannot provide the basis for a criminal prosecution.
66
I respectfully dissent.
1
See also State ex rel. Faches v. N. D. D., Inc., 228 N.W.2d 191 (Iowa 1975) (State cannot enjoin the showing of certain movies under a statute relating to the use of premises "for the purpose of lewdness," when "lewdness" is not statutorily defined).
2
"SEC. 9. . . . In order to provide for the uniform application of the provisions of this Act relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of this Act, and no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials. All such laws, ordinances or regulations, whether enacted before or after this Act, shall be or become void, unenforceable and of no effect upon the effective date of this Act" (July 1, 1974).
3
Section 1461 provides, in relevant part:
"Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; . . .
"Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
"Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section . . . to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter."
4
Petitioner's proposed questions were:
"1. Are any members of the panel a member of or are in sympathy with any organization which has for its purpose the regulating or banning of alleged obscene materials?
"2. Will those jurors raise their hands who have any knowledge of the contemporary community standards existing in this federal judicial district relative to the depiction of sex and nudity in magazines and books?
"(The following individual questions are requested for each juror who answers the above question in the affirmative.)
"3. Where did you acquire such information?
"4. State what your understanding of those contemporary community standards are?
"5. In arriving at this understanding, did you take into consideration the laws of the State of Iowa which regulate obscenity?
"6. State what your understanding of those laws are?" App. 8.
5
Despite the District Court's failure to discuss this point, we are satisfied that petitioner adequately preserved it for appellate review. See P 7 of his motion for a new trial. App. 30.
6
The phrase "contemporary community standards" was first used in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). See generally F. Schauer, The Law of Obscenity 116-135 (1976). The Roth Court explained the derivation and importance of the community standards test as follows:
"The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin, (1868) L.R. 3 Q.B. 360. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity." 354 U.S., at 488-489, 77 S.Ct., at 1311 (footnotes omitted).
Although expressions in opinions vacillated somewhat before coming to the position that a national community standard was not constitutionally mandated, compare Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, and n. 10, 82 S.Ct. 1432, 1437, 8 L.Ed.2d 639 (1962) (opinion of Harlan, J.), and Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964) (opinion of Brennan, J.), with Miller v. California, 413 U.S., at 30, 93 S.Ct., at 2618, the Court has never varied from the Roth position that the community as a whole should be the judge of obscenity, and not a small, atypical segment of the community. The only exception to this rule that has been recognized is for material aimed at a clearly defined deviant sexual group. Mishkin v. New York, 383 U.S. 502, 508, 86 S.Ct. 958, 963, 16 L.Ed.2d 56 (1966). See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 n. 6, 93 S.Ct. 2628, 2634, 37 L.Ed.2d 446 (1973).
7
See also Jacobellis v. Ohio, 378 U.S., at 191-192, 84 S.Ct., at 1680 (opinion of Brennan, J.); Roth v. United States, 354 U.S., at 487 n. 20, 77 S.Ct., at 1310; United States v. Kennerley, 209 F. 119, 121 (S.D.N.Y.1913) (L. Hand, J.) (obscenity should be determined in accordance with the "present critical point in the compromise between candor and shame at which the community may have arrived here and now"). Cf. Manual Enterprises, Inc. v. Day, 370 U.S., at 486, 82 S.Ct., at 1436 (opinion of Harlan, J.) (usually the elements of prurient interest and patent offensiveness will coalesce for this kind of material).
8
The Court in Miller gave two "plain examples" of what a state statute could define for regulation:
"(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." 413 U.S., at 25, 93 S.Ct., at 2615.
9
See also Paris Adult Theatre I v. Slaton, 413 U.S., at 64, 93 S.Ct., at 2639 (the States are free to adopt a "laissez-faire" policy "and drop all controls on commercialized obscenity, if that is what they prefer"); United States v. Reidel, 402 U.S. 351, 357, 91 S.Ct. 1410, 1413, 28 L.Ed.2d 813 (1971) (nonregulation of obscenity for adults "may prove to be the desirable and eventual legislative course").
10
The language of § 1461 gives no indication that Congress intended to adopt state laws relating to distribution of obscene material for purposes of the federal statute, nor does its history. See n. 12, infra. Furthermore, none of the usual reasons advanced in favor of such adoption are present here. The regulation of the mails is a matter of particular federal concern, and the nationwide character of the postal system argues in favor of a nationally uniform construction of § 1461. The Constitution itself recognizes this fact, in the specific grant to Congress of power over the postal system. Art. I, § 8, cl. 7. Obscenity in general has been a matter of both national and local concern. To the extent that local concern is relevant, however, the jurors' application of contemporary community standards fully satisfies that interest. Finally, to the extent that the state law and the federal law conflict, traditional principles of federal supremacy require us to follow the federal policy. See Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943); United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947); DeSylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956); United States v. Little Lake Misere Land Co., 412 U.S. 580, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973). See generally Comment, Adopting State Law as the Federal Rule of Decision: A Proposed Test, 43 U.Chi.L.Rev. 823 (1976). We therefore decline petitioner's invitation to adopt state law relating to distribution for purposes of the federal statute regulating use of the mails.
11
It is to be noted that Miller held only that the States could not be compelled to adopt a national standard. 413 U.S., at 30, 93 S.Ct., at 2618. If a state legislature decided that it wanted a national community standard for purposes of instructing state juries, or if Congress amended the federal legislation in such a way as to require reference to a national standard, a different question would be presented. We express no view upon any such question.
12
For a detailed summary of the history of § 1461, see generally Manual Enterprises, Inc. v. Day, 370 U.S., at 500-511, 82 S.Ct., at 1443-1449 (opinion of Brennan, J.); Cairns, Paul & Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn.L.Rev. 1009, 1010-1011, n. 2 (1962); Paul, The Post Office and Non-Mailability of Obscenity: An Historical Note, 8 UCLA L.Rev. 44 (1961); Schauer, supra, n. 6, at 8-29.
1
17 Stat. 598, 18 U.S.C. § 1461. The statute "was passed with less than an hour of Congressional debate, and there was no objection to its enactment in either the House or the Senate. Reflecting its origin, the law is still known as the Comstock Act." F. Schauer, The Law of Obscenity 13 (1976).
2
It is, of course, possible that the postal inspectors, who had used fictitious names to request the materials, were offended by them. There was, however, no such testimony. Moreover, persons examining materials of this kind as a part of their routine duties must surely develop an insensitivity to them.
3
Although appeal to the "prurient" interest and "patently offensive" character are identified as separate parts of the legal standard for determining whether materials are obscene, the two concepts overlap to some extent. But whether or not the two standards are different, sexually oriented material is constitutionally protected if it is not patently offensive.
4
In 1962, Mr. Justice Harlan wrote:
"There must first be decided the relevant 'community' in terms of whose standards of decency the issue must be judged. We think that the proper test under this federal statute, reaching as it does to all parts of the United States whose population reflects many different ethnic and cultural backgrounds, is a national standard of decency. We need not decide whether Congress could constitutionally prescribe a lesser geographical framework for judging this issue which would not have the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency." Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, 82 S.Ct. 1432, 1437, 8 L.Ed.2d 639 (footnote omitted).
5
As Mr. Justice Brennan has written:
"It is true that local communities throughout the land are in fact diverse, and that in cases such as this one the Court is confronted with the task of reconciling the rights of such communities with the rights of individuals. Communities vary, however, in many respects other than their toleration of alleged obscenity, and such variances have never been considered to require or justify a varying standard for application of the Federal Constitution. The Court has regularly been compelled, in reviewing criminal convictions challenged under the Due Process Clause of the Fourteenth Amendment, to reconcile the conflicting rights of the local community which brought the prosecution and of the individual defendant. Such a task is admittedly difficult and delicate, but it is inherent in the Court's duty of determining whether a particular conviction worked a deprivation of rights guaranteed by the Federal Constitution. The Court has not shrunk from discharging that duty in other areas, and we see no reason why it should do so here. The Court has explicitly refused to tolerate a result whereby 'the constitutional limits of free expression in the Nation would vary with state lines,' Pennekamp v. Florida, supra, 328 U.S. (331), at 335 (66 S.Ct. 1029, at 1031, 90 L.Ed. 1295); we see even less justification for allowing such limits to vary with town or county lines. We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is, after all, a national Constitution we are expounding." Jacobellis v. Ohio, 378 U.S. 184, 194-195, 84 S.Ct. 1676, 1681, 12 L.Ed.2d 793 (footnote omitted).
6
Id., at 200-201, 84 S.Ct., at 1684-1685 (dissenting opinion).
7
Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419.
8
Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590.
9
Mr. Justice Stewart, concurring in Jacobellis v. Ohio, supra, 378 U.S., at 197, 84 S.Ct., at 1683, wrote that criminal prosecution in the obscenity area is constitutionally limited to prosecution of "hard-core pornography." He went on to note:
"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it and the motion picture involved in this case is not that."
10
The opinion in Miller, supra, 413 U.S., at 30-31, 93 S.Ct., at 2618, assumes that jurors could more easily "draw on the standards of their community" than some "hypothetical and unascertainable 'national standar(d).' " Yet, that assumption can only relate to isolated communities where jurors are well enough acquainted with members of their community to know their private tastes and values. The assumption does not apply to most segments of our diverse, mobile, metropolitan society. For surely, the standard for a metropolitan area is just as "hypothetical and unascertainable" as any national standard. For a juror, it would be almost as hard to determine the community standard for any large urban area as it would be to determine a national standard. Metropolitan areas typically contain some commercial districts devoted to the exploitation of sex, in bookshops, adult theaters, nightclubs, or burlesque houses; a juror might have seen respectable citizens frequenting the entertainments of such areas and therefore conclude that the community standard was one of "anything goes." Another juror might predicate his standard on residential enclaves which include nothing even closely resembling an adult bookstore, and decide that such an area reflects the proper standard. Under that test, the juror would probably conclude that any magazine sold from under the local drugstore counter must be obscene because its presence on the magazine rack might offend customers. A third juror might try to apply a hybrid standard.
11
See Hamling v. United States, supra, 418 U.S., at 142-145, 94 S.Ct., at 2919-2921 (Brennan, J., dissenting); United States v. McManus, 535 F.2d 460 (C.A.8 1976), cert. denied, 429 U.S. 1052, 97 S.Ct. 766, 50 L.Ed.2d 769. Edelstein & Mott, Collateral Problems in Obscenity Regulation: A Uniform Approach to Prior Restraints, Community Standards and Judgment Preclusion, 7 Seton Hall L.Rev. 543, 566-571 (1976).
12
Rosenblatt & Rosenblatt, Six Member Juries in Criminal Cases: Legal and Psychological Considerations, 47 St. John's L.Rev. 615, 631-632 (1973); Asch, Effects of Group Pressure upon the Modification and Distortion of Judgments, reprinted in D. Cartwright, Group Dynamics 189-200 (1960).
13
A juror might well find certain materials appealing and yet be unwilling to say so. He may assume, without necessarily being correct, that his reaction is aberrant and at odds with the prevailing community view, especially if the first members of the jury to speak indicate that they consider the material offensive. Perhaps one reason that the Comstock Act was passed unanimously, see n. 1, supra, is that it is much more popular to be against sin than to be tolerant of it.
14
The introduction of evidence on the question of contemporary community standards will rarely enable an appellate judge to differentiate between the jurors' own reactions to the materials in question and the reactions of the average resident of the community. For instance, in the present case, the defendant entered into evidence as exhibits materials which were freely and lawfully available at stores in Iowa. These exhibits were more salacious, lewd, and open in their treatment of sex than were the materials upon which the defendants were convicted. Yet a reviewing court could not use this evidence to overturn a jury verdict, for the jury's view may quite correctly have been that these materials, although freely available, were appreciated only by a deviant minority of the community and did not conform to the community standard. Testimony of experts would have to be similarly discounted.
15
Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303.
16
In deciding what comments on litigation may be punished, the content of the comment, whether it is uttered inside or outside the courtroom, and whether it concerns pending litigation, all have relevance. See In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708; Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192. See also In re Dellinger, 502 F.2d 813, 815 (C.A.7 1974), cert. denied sub nom. Dellinger v. United States, 420 U.S. 990, 95 S.Ct. 1425, 43 L.Ed.2d 671; Theriault v. United States, 481 F.2d 1193, 1196 (C.A.5 1973), cert. denied, 414 U.S. 1114, 94 S.Ct. 847, 38 L.Ed.2d 742. Such factors are always relevant in applying the clear-and-present-danger test: Only the combination of content (the word "fire") and place (a crowded theater) allows prohibition in Mr. Justice Holmes' famous example, Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470.
17
See Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513.
18
This assumption must underlie the suggestion in Miller that a national standard would require that "the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." 413 U.S., at 32, 93 S.Ct., at 2619 (footnote omitted). That suggestion misreads the First Amendment in at least two ways. The constitutional protection of the speaker's right to communicate does not deprive the local community of all authority to regulate the time, place, and manner of communication; Nevada's approval of public displays would not necessarily require Maine or Mississippi to approve use of identical means of expression. More fundamentally, the constitutional inquiry is not confined to the question of what an unwilling recipient must accept; rather, the critical First Amendment question in this kind of case involves the interested individual's right of access to materials he desires. See the passage from Kleindienst v. Mandel, 408 U.S. 753, 762-763, 92 S.Ct. 2576, 2581-2582, 33 L.Ed.2d 683, quoted in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 757, 96 S.Ct. 1817, 1823, 48 L.Ed.2d 346, which recognizes that the First Amendment necessarily protects the right to "receive information and ideas."
19
As Mr. Justice Douglas once noted, "The First Amendment makes confidence in the common sense of our people and in their maturity of judgment the great postulate of our democracy." Dennis v. United States, 341 U.S. 494, 590, 71 S.Ct. 857, 907, 95 L.Ed. 1137 (dissenting opinion).
20
If First Amendment protection is properly denied to materials that are "patently offensive" to the average citizen, I question whether the element of erotic appeal is of critical importance. For the average person may find some portrayals of violence, of disease, or of intimate bodily functions (such as the birth of a child) equally offensive at least when they are viewed for the first time. It is noteworthy that one of the examples of an unprotected representation identified by the Court ante, at 301 n. 8; surely would have no erotic appeal to the average person.
21
As Mr. Justice Harlan wrote in Cohen v. California, 403 U.S. 15, 25-26, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284:
"Additionally, we cannot overlook the fact . . . that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated."
To a similar effect, this Court wrote in Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840:
"We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature."
22
See the Final Report of the President's Commission on Obscenity and Pornography (1970).
23
Anthony Comstock, who is given credit for the enactment of the statute involved in this case, understood this point. He wrote: " 'No embellishment of art can rob lust of its power for evil upon the human nature,' " J. Kilpatrick, The Smut Peddlers 42 (1960). According to Professor Schauer "(a) mong the objects of Comstock's scorn were light literature, pool halls, lotteries, gambling dens, popular magazines, and weekly newspapers. Artistic motive was irrelevant." The Law of Obscenity 12 n. 51 (1976).
24
Mr. Justice Holmes has written:
"(W)hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution." Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (dissenting opinion).
| 23
|
431 U.S. 174
97 S.Ct. 1823
52 L.Ed.2d 231
UNITED STATES, Petitioner,v.Rose WONG.
No. 74-635.
Argued Dec. 6, 1976.
Decided May 23, 1977.
Syllabus
A witness who, while under investigation for possible criminal activity, is called to testify before a grand jury and is later indicted for perjury in the testimony given before the grand jury, is not entitled to suppression of the false testimony on the ground that no effective warning of the Fifth Amendment privilege to remain silent had been given. Pp. 177-180.
(a) The Fifth Amendment testimonial privilege does not condone perjury, which is not justified by even the predicament of being forced to choose between incriminatory truth and falsehood, as opposed to a refusal to answer. United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275; United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212. Pp. 178-179.
(b) Nor do Fifth Amendment due process requirements require suppression, since even where searching questions are made of a witness uninformed of the Fifth Amendment privilege of silence, "(o)ur legal system provides methods for challenging the Government's right to ask questions lying is not one of them." Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 360, 24 L.Ed.2d 264. Pp. 179-180.
553 F.2d 576, reversed and remanded.
William F. Sheehan, III, Washington, D. C., for petitioner.
Allan Brotsky, San Francisco, Cal., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to decide whether a witness who, while under investigation for possible criminal activity, is called to testify before a grand jury and who is later indicted for perjury committed before the grand jury, is entitled to have the false testimony suppressed on the ground that no effective warning of the Fifth Amendment privilege to remain silent was given.1
2
(1)
3
Rose Wong, the respondent, came to the United States from China in early childhood. She was educated in public schools in San Francisco, where she completed eight grades of elementary education. Because her husband does not speak English, respondent generally speaks in her native tongue in her household.
4
In September 1973 respondent was subpoenaed to testify before a federal grand jury in the Northern District of California. The grand jury was investigating illegal gambling and obstruction of state and local law enforcement in San Francisco. At the time of her grand jury appearance, the Government had received reports that respondent paid bribes to two undercover San Francisco police officers and agreed to make future payments to them. Before any interrogation began, respondent was advised of her Fifth Amendment privilege;2 she then denied having given money or gifts to police officers or having discussed gambling activities with them. It is undisputed that this testimony was false.
5
(2)
6
Respondent was indicted for perjury in violation of 18 U.S.C. § 1623. She moved to dismiss the indictment on the ground that, due to her limited command of English, she had not understood the warning of her right to answer incriminating questions. At a suppression hearing, defense counsel called an interpreter and two language specialists as expert witnesses and persuaded the District Judge that respondent had not comprehended the prosecutor's explanation of the Fifth Amendment privilege;3 the court accepted respondent's testimony that she had thought she was required to answer all questions. Based upon informal oral findings to this effect, the District Court ordered the testimony suppressed as evidence of perjury.
7
Accepting the District Court's finding that respondent had not understood the warning, the Court of Appeals held that due process required suppression where "the procedure employed by the government was fraught with the danger . . . of placing (respondent), in the position of either perjuring or incriminating herself." 553 F. 576, 578 (CA9 1974). Absent effective warnings of the right to remain silent, the court concluded, a witness suspected of criminal involvement by the Government will "not understand the right to remain silent, and (will) be compelled by answering to subject himself to criminal liability." Ibid. In the Court of Appeals' view, the ineffectiveness of the prosecutor's warning meant that "the unfairness of the procedure remained undissipated, and due process requires the testimony be suppressed." Id., at 579.
8
Following our decision in United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), we granted certiorari. 426 U.S. 905, 96 S.Ct. 2224, 48 L.Ed. 829 (1975). We now reverse.
9
(3)
10
Under findings which the Government does not challenge, respondent, in legal effect, was unwarned of her Fifth Amendment privilege. Resting on the finding that no effective warning was given, respondent contends that both the Fifth Amendment privilege and Fifth Amendment due process require suppression of her false testimony. As to her claim under the Fifth Amendment testimonial privilege, respondent argues that, without effective warnings, she was in effect forced by the Government to answer all questions, and that her choice was confined either to incriminating herself or lying under oath. From this premise, she contends that such testimony, even if knowingly false, is inadmissible against her as having been obtained in violation of the constitutional privilege. With respect to her due process claim, she contends, and the Court of Appeals held,4 that, absent warnings, a witness is placed in the dilemma of engaging either in self-incrimination or perjury, a situation so inherently unfair as to require suppression of perjured testimony. We reject both contentions.
11
(1) As our holding in Mandujano makes clear, and indeed as the Court of Appeals recognized, the Fifth Amendment privilege does not condone perjury. It grants a privilege to remain silent without risking contempt, but it "does not endow the person who testifies with a license to commit perjury." Glickstein v. United States, 222 U.S. 139, 142, 32 S.Ct. 71, 73, 56 L.Ed. 128 (1911). The failure to provide a warning of the privilege, in addition to the oath to tell the truth, does not call for a different result. The contention is that warnings inform the witness of the availability of the privilege and thus eliminate the claimed dilemma of self-incrimination or perjury. Cf. Garner v. United States, 424 U.S. 648, 657-658, 96 S.Ct. 1178, 1183-1184, 47 L.Ed.2d 370 (1976). However, in United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969), the Court held that even the predicament of being forced to choose between incriminatory truth and falsehood, as opposed to refusing to answer, does not justify perjury. In that case, a taxpayer was charged with filing false information on a federal wagering tax return. At the time of the offense, federal law commanded the filing of a tax return even though the effect of that requirement, in some circumstances, was to make it a crime not to supply the requested information to the Government.5 To justify the deliberate falsehood contained in his tax return, Knox, like respondent here, argued that the false statements were not made voluntarily, but were compelled by the tax laws and therefore violated the Fifth Amendment. The Court rejected that contention. Although it recognized that tax laws which compelled filing the returns injected an "element of pressure into Knox's predicament at the time he filed the forms," id., 396 U.S. at 82, 90 S.Ct., at 366, the Court held that by answering falsely the taxpayer took "a course that the Fifth Amendment gave him no privilege to take." Ibid.
12
(2) In this case respondent stands in no better position than Knox; her position, in fact, is weaker since her refusal to give inculpatory answers, unlike Knox, would not have constituted a crime. It follows that our holding in Mandujano, that the Fifth Amendment privilege does not protect perjury, is equally applicable to this case.
13
(4)
14
(3) Respondent also relies on the Court of Appeals' holding that the failure to inform a prospective defendant of the constitutional privilege of silence at the time of a grand jury appearance is so fundamentally unfair as to violate due process. In the Court of Appeals' view, the Government's conduct in this case, although in good faith, so thwarted the adversary model of our criminal justice system as to require suppression of the testimony in any subsequent perjury case based on the falsity of the sworn statement.6 We disagree.
15
First, the "unfairness" urged by respondent was also present in the taxpayer's predicament in Knox, yet the Court there found no constitutional infirmity in the taxpayer's conviction for making false statements on his returns. Second, accepting, arguendo, respondent's argument as to the dilemma posed in the grand jury procedures here,7 perjury is nevertheless not a permissible alternative. The "unfairness" perceived by respondent is not the act of calling a prospective defendant to testify before a grand jury8 but rather the failure effectively to inform a prospective defendant of the Fifth Amendment privilege. Thus, the core of respondent's due process argument, and of the Court of Appeals' holding, in reality relates to the protection of values served by the Fifth Amendment privilege, a privilege which does not protect perjury.
16
(4) Finally, to characterize these proceedings as "unfair" by virtue of inadequate Fifth Amendment warnings is essentially to say that the Government acted unfairly or oppressively by asking searching questions of a witness uninformed of the privilege. But, as the Court has consistently held, perjury is not a permissible way of objecting to the Government's questions. "Our legal system provides methods for challenging the Government's right to ask questions lying is not one of them." (footnote omitted.) Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 360, 24 L.Ed.2d 264 (1969); United States v. Mandujano, 425 U.S., at 577, 585, 96 S.Ct., at 1777, 1781 (Brennan, J., concurring in judgment); id., at 609, 96 S.Ct. at 1792 (Stewart, J., concurring in judgment). Indeed, even if the Government could, on pain of criminal sanctions, compel an answer to its incriminating questions, a citizen is not at liberty to answer falsely. United States v. Knox, supra, 396 U.S., at 82-83, 90 S.Ct., at 366-367. If the citizen answers the question, the answer must be truthful.
17
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
18
Reversed and remanded.
1
In United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), we held that false testimony by a grand jury witness suspected by federal prosecutors of criminal involvement was admissible in a subsequent perjury trial. Although the witness in Mandujano had been warned of the Fifth Amendment privilege, the Court of Appeals had mandated suppression of the perjurious testimony on the ground that the witness had not been provided with full Miranda warnings. In this Court, three separate opinions expressed varying reasons, but all eight participating Justices agreed that the perjured testimony was improperly suppressed.
2
The prosecutor gave respondent the following warnings:
"You . . . need not answer any question which you feel may . . . incriminate you. . . . (Y)ou (have) the right to refuse to answer any question which you feel might incriminate you. . . . (I)f you do give an answer, that answer may be used against you in a subsequent criminal prosecution, if in fact the Government should decide to prosecute you for any crime. . . . You also have the right to consult with an attorney prior to answering any question here today. . . . (I)f you cannot afford an attorney, . . . we would see that an attorney is afforded to represent you. . . . (I)f you do answer any questions and should you knowingly give any false testimony, or false answers to any questions, you would be subject to prosecution for the crime of perjury under the Federal Laws." 2 Tr. 52-53.
3
The District Court found, however, that respondent understood the oath and the consequences of giving false testimony, and that she understood the questions that were asked of her. Thus, no issue regarding the due process consequences, if any, of the absence of either factor was addressed by the District Court or the Court of Appeals.
4
The Court of Appeals rejected respondent's argument that the Fifth Amendment privilege required suppression. The court held:
"(T)he privilege against self-incrimination does not afford a defense to a witness under compulsion who, rather than refusing to answer (or, if improperly compelled to answer, giving incriminating answers), gives false testimony." 553 F.2d 576, 577.
5
Knox filed the false return prior to this Court's decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).
6
The Court of Appeals did not suggest why, assuming a due process violation had occurred, suppression of respondent's testimony was constitutionally required.
7
Cf. United States v. Mandujano, 425 U.S., at 594-598, 96 S.Ct. 1768, 1785-1787, 48 L.Ed.2d 212 (Brennan, J., concurring in judgment).
8
There is no constitutional prohibition against summoning potential defendants to testify before a grand jury. United States v. Dionisio, 410 U.S. 1, 10 n. 8, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mandujano, supra, 425 U.S., at 584 n. 9, 594, 96 S.Ct., at 1780, 1785 (Brennan, J., concurring in judgment). The historic availability of the Fifth Amendment privilege in grand jury proceedings, Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), attests to the Court's recognition that potentially incriminating questions will frequently be asked of witnesses subpoenaed to testify before the grand jury; the very purpose of the inquiry is to ferret out criminal conduct, and sometimes potentially guilty persons are prime sources of information.
| 01
|
431 U.S. 322
97 S.Ct. 1755
52 L.Ed.2d 349
Commonwealth of MASSACHUSETTS, Petitioner,v.Jack B. WESTCOTT.
No. 75-1775.
May 23, 1977.
PER CURIAM.
1
Respondent Westcott was arrested for violating a Massachusetts statute that prohibits nonresidents of the Commonwealth of Massachusetts from dragging for fish by beam or otter trawl in Vineyard Sound during July, August, and September.1 After he was found guilty, he pursued his right to de novo review and filed a motion to dismiss the complaint. The Massachusetts Supreme Judicial Court granted direct appellate review and ordered the complaint dismissed on the ground that the statute violated the Privileges and Immunities Clause of the United States Constitution, Art. IV, § 3, cl. 2, 344 N.E.2d 411. We granted certiorari. 429 U.S. 815, 97 S.Ct. 54, 50 L.Ed.2d 74 (1976).
2
Our decision today in Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740, 52 L.Ed.2d 304, suggests that there may be a statutory basis to provide respondent the relief he seeks, thereby making it unnecessary to decide the constitutional question presented. Douglas holds that federal law pre-empts the States from denying vessels that are federally enrolled and licensed for the fisheries the right to fish in state waters on the same terms as state residents. Respondent's vessel is federally enrolled and licensed "to be employed in carrying on the mackerel fishery," the same license that was held by appellees in Douglas.2 In accordance with our longstanding principle of deciding constitutional questions only when necessary, Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974); Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), we decline to decide the privileges and immunities question presented in this case, and vacate the judgment and remand the case for further consideration in light of Douglas. See McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 60 S.Ct. 670, 84 L.Ed. 849 (1940).
3
It is so ordered.
4
Mr. Justice REHNQUIST concurs in the judgment on the authority of Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740, 52 L.Ed.2d 304.
1
The Act of Feb. 20, 1923, c. 35, 1923 Mass. Acts 17, as amended by the Act of Mar. 13, 1962, c. 219, 1962 Mass. Acts 107:
"It shall be unlawful during the months of July, August and September for any person who has not been a legal resident of this commonwealth during the preceding year to use beam or otter trawls to drag for fish in that part of the waters of Vineyard Sound lying in the towns of Chilmark, Gay Head and Gosnold, and included between an imaginary line running from the extreme western point of Gay Head to the extreme western point of Nashawena Island and another imaginary line running from Cape Higgon to Tarpaulin Cove Light. Violation of this act shall be punished by a fine of not less than five hundred nor more than one thousand dollars."
2
The fact that respondent holds such a license has been ascertained from the records of the Merchant Vessel Documentation Division of the Coast Guard. These records may be judicially noticed. See, e. g., Bowles v. United States, 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194 (1943); Tempel v. United States, 248 U.S. 121, 39 S.Ct. 56, 63 L.Ed. 162 (1918); Jones v. United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691 (1890); cf. Fed.Rule Evid. 201(b) ("A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"). The parties were given an opportunity to comment on the propriety of our taking notice of the license, and both sides agreed that we could properly do so. See supplemental briefs filed by the parties.
| 910
|
431 U.S. 195
97 S.Ct. 1774
52 L.Ed.2d 250
TERRITORY OF GUAM, Petitioner,v.Edmund J. OLSEN.
No. 76-439.
Argued March 29, 1977.
Decided May 23, 1977.
Syllabus
Provision of § 22 of the 1950 Organic Act of Guam that the District Court of Guam "shall have such appellate jurisdiction as the (Guam) legislature may determine" held not to authorize the Guam Legislature to divest the District Court's appellate jurisdiction under the Act to hear appeals from local Guam courts, and to transfer that jurisdiction to the newly created Guam Supreme Court, but to empower the legislature to "determine" that jurisdiction only in the sense of the selection of what should constitute appealable causes. This conclusion is supported not only by the text of § 22, which expressly authorizes only a "transfer" of the District Court's original local jurisdiction, but also by the absence of any clear signal from Congress that it intended to allow the Guam Legislature to foreclose appellate review by Art. III courts, including this Court, of territorial courts' decisions in federal-question cases; by the Act's legislative history; and by the fact that if the word "determine" were read as giving Guam the power to transfer the District Court's appellate jurisdiction to the Guam Supreme Court and at the same time to authorize Guam to deny review of the District Court's decisions by any Art. III tribunal, Congress would have given Guam a power not granted to any other Territory. Pp. 199-204.
540 F.2d 1011, affirmed.
Charles H. Troutman, III, Agana, Guam, for the petitioner.
Howard G. Trapp, Agana, Guam, for the respondent.
Walter S. Ferenz, Agana, Guam, for the Guam Bar Association, as amicus curiae, by special leave of Court.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question for decision in this case is whether the provision of § 22 of the 1950 Organic Act of Guam that the District Court of Guam "shall have such appellate jurisdiction as the (Guam) legislature may determine" authorizes the Legislature of Guam to divest the appellate jurisdiction of the District Court under the Act to hear appeals from local Guam courts, and to transfer that jurisdiction to the Supreme Court of Guam, newly created by the Guam Legislature.
2
* Section 22(a) of the Organic Act, 64 Stat. 389, before an amendment not relevant here, provided:
3
"There is hereby created a court of record to be designated the 'District Court of Guam,' and the judicial authority of Guam shall be vested in the District Court of Guam and in such court or courts as may have been or may hereafter be established by the laws of Guam. The District Court of Guam shall have, in all causes arising under the laws of the United States, the jurisdiction of a district court of the United States as such court is defined in section 451 of title 28, United States Code, and shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it, and shall have such appellate jurisdiction as the legislature may determine. The jurisdiction of and the procedure in the courts of Guam other than the District Court of Guam shall be prescribed by the laws of Guam."1 (Emphasis supplied.) In 1951, under the authority of the Organic Act, the Guam Legislature created three local courts for local matters and defined cases appealable from those courts to the District Court.2 That structure continued without substantial change for 23 years until 1974 when the Guam Legislature adopted the Court Reorganization Act of 1974. Guam Pub.L. 12-85. The former Island, Police, and Commissioners' Courts, were replaced by a Guam Superior Court with "original jurisdiction in all cases arising under the laws of Guam, civil or criminal, in law or equity, regardless of the amount in controversy, except for causes arising under the Constitution, treaties, laws of the United States and any matter involving the Guam Territorial Income Tax."3 The Act also repealed the provisions of the Guam Code of Civil Procedure governing appeals to the District Court,4 and created the Supreme Court of Guam. The Act transferred to the Supreme Court essentially the same appellate jurisdiction as had previously been exercised by the District Court, providing that the Supreme Court "shall have jurisdiction of appeals from the judgments, orders and decrees of the Superior Court in criminal causes . . . and in civil cases." Pub.L. 12-85, § 3. Other provisions of the Reorganization Act amended various territorial laws to change the references to the Supreme Court of Guam from the Appellate Division of the District Court as the appellate court.
4
Respondent was convicted of criminal charges in the Superior Court, and appealed to the District Court of Guam. The District Court dismissed the appeal on the authority of a divided panel decision of the Court of Appeals for the Ninth Circuit holding that the 1974 Court Reorganization Act validly divested the District Court of its appellate jurisdiction and transferred that jurisdiction to the newly created Supreme Court. Agana Bay Dev. Co. (Hong Kong) Ltd. v. Supreme Ct. of Guam, 529 F.2d 952 (1976). In this case, however, the Court of Appeals for the Ninth Circuit, overruled en banc5 the panel decision in Agana Bay, and reversed the dismissal of respondent's appeal. 540 F.2d 1011 (1976). The Court of Appeals held that "the appellate jurisdiction of the district court may not be transferred without congressional authorization and pursuant to such provisions and safeguards as Congress may provide." Id., at 1012. Certain judgments of the appellate division of the District Court were made appealable to the Court of Appeals for the Ninth Circuit, and to this Court, by § 23 of the Organic Act of Guam of 1950, as amended, 65 Stat. 726,6 but Congress has not similarly provided for appeals from judgments of the Supreme Court of Guam. In that circumstance, the Court of Appeals held that § 22(a) did not authorize the transfer of the District Court's appellate jurisdiction to the Supreme Court of Guam because, under existing statutes "litigation in the territorial court (that) may involve substantial federal questions . . . cannot be reviewed by the United States Supreme Court or by any other Article III court . . .." 540 F.2d, at 1012. We granted certiorari, 429 U.S. 959, 97 S.Ct. 380, 50 L.Ed.2d 325 (1976). We affirm.
II
5
We emphasize at the outset that the 1974 Court Reorganization Act in no respect affects the exclusive7 original federalquestion jurisdiction of the District Court granted by the first clause of the second sentence of § 22(a), which now provides that the "District Court of Guam shall have the jurisdiction of a district court of the United States in all causes arising under the constitution, treaties, and laws of the United States . . .." 48 U.S.C. § 1424(a). Decisions in such cases brought in the District Court are appealable to the Court of Appeals for the Ninth Circuit or to this Court.8 The question presented for decision here rather concerns appeals to the District Court from decisions of local courts in cases arising under local law. The language we must construe immediately follows in the same sentence, providing that the District Court "shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it, and shall have such appellate jurisdiction as the legislature may determine." (Emphasis supplied.)
6
We first observe that Congress used different language in its grant of power to the Guam Legislature over the District Court's original jurisdiction from its grant of power over that court's appellate jurisdiction. The Act expressly provides that original jurisdiction might be "transferred " to "other court or courts" created by the legislature. As to appellate jurisdiction, however, the wording is that the District Court "shall have such appellate jurisdiction as the legislature may determine." The question immediately arises why, if Congress contemplated authority to eliminate the District Court's appellate jurisdiction by transferring it to a local court, Congress did not, as in the case of "original jurisdiction," explicitly provide that appellate jurisdiction too might be "transferred." Moreover, if Congress contemplated such a broad grant of authority, it might be expected that it would have referred, as in the case of original jurisdiction, to "other court or courts" that would be established to assume the appellate jurisdiction transferred from the District Court. Clearly, the word "determine" is not used as a synonym for "transfer," and it is not obvious that the power to "determine" the appellate jurisdiction of the District Court includes the power to abolish it by "transfer" to another court. We fully agree with Judge Kennedy dissenting in Agana Bay, 529 F.2d, at 959, that Congress used "determine" because Congress "more likely intended to permit the local legislature to decide what cases were serious enough to be appealable," and we note that the Guam Legislature found no broader authority in the term for the 23 years from 1951 to 1974. We therefore conclude that Congress expressly authorized a "transfer" of the District Court's original jurisdiction but withheld a like power respecting the court's appellate jurisdiction, empowering Guam to "determine" the District Court's appellate jurisdiction only in the sense of the selection of what should constitute appealable causes.9
7
Other considerations besides our reading of the bare text support the conclusion that the power to "determine" should not be construed to include the power to "transfer" without more persuasive indicia of a congressional purpose to clothe the Guam Legislature with this authority.
8
First, we should be reluctant without a clear signal from Congress to conclude that it intended to allow the Guam Legislature to foreclose appellate review by Art. III courts, including this Court, of decisions of territorial courts in cases that may turn on questions of federal law. Important federal issues can be presented in cases which do not fall within the District Court's federal-question jurisdiction, because they do not "arise under" federal law, but instead fall within the exclusive jurisdiction vested in the Superior and Supreme Courts by the Reorganization Act. For example, criminal convictions returned in the Superior Court and appealable under the Court Reorganization Act only to the Supreme Court, may be challenged as violating federal constitutional guarantees. It is no answer that rejection of a federal constitutional defense by the Guam courts, though not presently directly reviewable by the Court of Appeals for the Ninth Circuit or by this Court, may nevertheless be reviewable in federal habeas corpus. Tr. of Oral Arg. 9. Habeas corpus review has different historical roots from direct review and different jurisprudential functions and limitations. See, e. g., Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). As respects civil cases, though the "arising under" jurisdiction vested in the District Court by § 22(a) tracks the general federal-question statute, 28 U.S.C. § 1331(a), clearly whatever may be the ambiguities of the phrase "arising under" it does not embrace all civil cases that may present questions of federal law. See, e. g., Gully v. First Nat. Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Cohen, The Broken Compass: The Requirement that a Case Arise "Directly" under Federal Law, 115 U.Pa.L.Rev. 890 (1967). We are therefore reluctant to conclude that, merely because power to "determine" may as a matter of dictionary definition include power to "transfer," Congress intended to confer on the Guam Legislature the power to eliminate review in Art. III courts of all federal issues presented in cases brought in the local courts.
9
Second, nothing in the legislative history of the Organic Act of 1950 even remotely suggests that Congress intended by its use of the word "determine" to give the Guam Legislature the option of creating a local Supreme Court having the power of ultimate review of cases involving local matters. Rather, the legislative history points the other way. Three bills introduced in the 81st Congress provided for a judicial system for Guam. Hearings on S. 185, S. 1892, and H.R. 7273 before the Subcommittee of the Senate Committee on Interior and Insular Affairs, 81st Cong., 2d Sess., 1-25 (1950) (hereafter Hearings). All three provided for appellate review by Art. III courts of territorial court decisions. The bill that became the Organic Act, H.R. 7273, originally established a Supreme Court of Guam whose decisions were to be reviewable by the Court of Appeals for the Ninth Circuit and by this Court. Hearings 22-23. The proposal for a congressionally created Supreme Court was rejected in favor of a Federal District Court. This was done in part to provide "litigants in the Western Pacific with direct access to the federal court system." Agana Bay Dev. Co., Ltd. v. Supreme Court of Guam, supra, at 961 (Kennedy, J., dissenting); S.Rep. No. 2109, 81st Cong., 2d Sess., 4 (1950). But another concern accounts for the provision giving the District Court jurisdiction in local matters. Our independent review of the pertinent legislative materials confirms, and we therefore adopt, Judge Kennedy's conclusion expressed in dissent in Agana Bay, supra, at 961:
10
"Because of concern that there would not be sufficient federal question litigation to justify a separate district court in Guam, the court was given original jurisdiction in local matters. It was also envisioned that the district court would serve as an appellate body once local courts were established. The apparent reason for eliminating the provision for a local supreme court was to avoid duplicative judicial machinery, rather than to allow local authorities to put certain controversies beyond review by the federal court system."
11
Third, if the word "determine" is to be read as giving Guam the power to transfer the District Court's appellate jurisdiction to the Supreme Court and, by the same stroke, to authorize Guam to deny review of the court's decisions by any Art. III tribunal, Congress has given Guam a power not granted any other Territory. Congress has consistently provided for appellate review by Art. III courts of decisions of local courts of the other Territories.10 What history there is points to a purpose to create a similar system for Guam. Hearings, supra ; S.Rep. No. 2109, 81st Cong., 2d Sess. (1950). We are unwilling to say that Congress made an extraordinary exception in the case of Guam, at least without some clearer indication of that purpose than the word "determine" provides. Moreover, we should hesitate to attribute such a purpose to Congress since a construction that denied Guam litigants access to Art. III courts for appellate review of local-court decisions might present constitutional questions. See generally Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362 (1953).
12
Affirmed.
13
Mr. Justice MARSHALL, with whom Mr. Justice STEWART, Mr. Justice REHNQUIST, and Mr. Justice STEVENS join, dissenting.
14
Although this case may at first glance seem unimportant to anyone but the residents of Guam, the result of the Court's decision is perhaps unprecedented in our history. The Court today abolishes the Supreme Court of Guam, a significant part of the system of self-government established by some 85,000 American citizens through their freely elected legislature.1
15
The Court's error, in my view, lies in its misinterpretation of the Organic Act of Guam. I do not doubt that Congress has the authority in the exercise of its plenary power over Territories of the United States, Art. IV, § 3, to reverse Guam's decision to reorganize its local court system. In this case, however, Congress has plainly authorized enactment of the challenged legislation, while there has been no corresponding delegation to this Court of the congressional power to veto such laws. Because "our judicial function" is limited "to apply(ing) statutes on the basis of what Congress has written, not what Congress might have written", United States v. Great Northern R. Co., 343 U.S. 562, 575, 72 S.Ct. 985, 993, 96 L.Ed. 1142 (1952), I must respectfully dissent.
16
In reaching its decision, the Court focuses exclusively on the meaning of the second half of the second sentence of § 22 (a) of the Organic Act of Guam, 64 Stat. 389.2 With all respect, this approach ignores the horse while concentrating on minute details of the cart's design. If the sentences of § 22 (a) are simply read in the order in which they are written, their meaning is plain without resort to complex exegesis.
17
The first sentence creates the federal "District Court of Guam." It goes on to provide that "the judicial authority of Guam shall be vested in the District Court of Guam and in such court or courts as may have been or may hereafter be established by the laws of Guam." This language is strikingly similar to the familiar words of Art. III, § 1: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Both provisions describe the bodies that will exercise the judicial power. They name one court and mandate its establishment. They leave the creation of the remainder of the court system to the legislature. But there is one key distinction: Where Art. III expressly describes the relationship among the courts, making one "supreme" and the others "inferior," § 22(a) is silent.
18
The only reasonable conclusion that can be drawn from this distinction is that the Organic Act, unlike our Constitution, was intended to allow the elected representatives of the people governed by the courts to control the relationship among the courts. The absence of any indication of a superior-inferior structure in § 22(a) also indicates that there is no reason to consider the federal and local courts other than co-equal in matters as to which they share jurisdiction, i. e., cases that might be appealed. Rather, the conspicuously incomplete emulation of the well-known Art. III model suggests that the people of Guam may terminate the District Court's appellate jurisdiction.
19
The Court ascribes great significance to the different language used to describe the legislature's power to "transfer" trial jurisdiction to the local courts, as contrasted with the power to "determine" appellate jurisdiction. The words, read in context, seem to me to be no more than alternative expressions for the same concept, used in the interest of avoiding repetition. Thus, the first sentence of § 22(a) gives Guam the authority to establish any courts it deems necessary. The last sentence of the section, also ignored in the Court's analysis, gives Guam the power to prescribe the "jurisdiction of and procedure in" such local courts. "Determine" as used in the context of the second sentence of § 22(a) is an obvious synonym for "grant." If the Guam Legislature may grant the District Court appellate jurisdiction in the first instance, it has the converse power to withdraw it. Read as a whole, § 22(a) plainly encompasses the power to give all appellate jurisdiction to a local court.
20
The Court relies on the fact that this interpretation of the Organic Act might insulate decisions of the local courts that involve questions of federal constitutional or statutory law from review in Art. III courts, something which other territorial charters have apparently not granted. With respect to the latter point, it is worth noting that Guam is a small and isolated possession that Congress might well have wished to give unusual autonomy in local affairs. No doubt, too, Congress' sense of the proper way to govern far-distant citizens has changed considerably in recent decades from the expansionist ethic which prevailed when Hawaii was annexed, the Spanish possessions (including Guam) ceded, and the Virgin Islands purchased. It is thus not surprising to find a broad authorization for self-government granted by the Organic Act passed in 1950. And it speaks well for the good sense of the people of Guam that they observed the functioning of the judicial system on their island for 23 years before deciding that a local appellate court would best serve their needs. This hiatus, therefore, does not indicate that Guam lacked the power to act, as the Court assumes, ante, at 201, but rather that the people deemed it unwise at that stage in their development to do so. Moreover, as careful analysis of the relevant sections of other territorial charters demonstrates, see Agana Bay Development Corp. v. Supreme Court of Guam, 529 F.2d 952, 957-958 (CA9 1976), "the Guam Organic Act is unique and it delegates the widest powers of any of the territories to the legislature for the creation of appellate courts." Id., at 957.
21
If there are constitutional problems with this interpretation of the Organic Act, see ante, at 201-202, 204, they do not arise from the action of the Guam Legislature in creating a local appellate court. Rather, they stem from the absence of a statute expressly providing for appeals from the Guam courts to an Art. III tribunal. As petitioners note, Brief, at 15-19, Congress has in its dealings with Guam historically reacted to the developing legal needs of the island rather than anticipating them. See, e. g., Corn v. Guam Coral Co., 318 F.2d 622, 624-627 (CA9 1963). This is not surprising; since the Organic Act did not set up a local court structure, it was impossible for Congress to foresee the manner in which the system as actually established would mesh with the Art. III courts. Most recently, Congress authorized Guam to design a local court system as part of the drafting of a new constitution, recognizing that it would thereafter be necessary to enact legislation "regulating the relationship between the local courts of Guam (and) the Federal judicial system." Pub.L. No. 94-584, 90 Stat. 2899, § 2(b)(7).
22
In view of the willingness of Congress to accommodate both the aspirations of the people of Guam and the requirements of federal jurisdiction, I think there is no need to search for constitutional questions where none yet exist.3 In the meantime, we should not eviscerate the court system carefully devised by the people of Guam in the exercise of their right of self-government.
23
I respectfully dissent.
1
The "District Court of Guam" rather than "United States District Court of Guam" was chosen as the court's title, since it was created under Art. IV, § 3, of the Federal Constitution rather than under Art. III, and since § 22 vested the court with original jurisdiction to decide both local and federal-question matters. S.Rep. No. 2109, 81st Cong., 2d Sess., 12 (1950), U.S.Code Cong. Service 1950, p. 2840.
2
The local courts were the Commissioners' Courts, the Police Court, and the Island Court. Guam Code Civ.Proc. § 81-278 (1953).
The District Court was vested with a wide-ranging appellate jurisdiction respecting criminal and civil decisions of the Island Court. §§ 62, 63, 82. A single judge constituted the District Court as a trial court. However, § 65 constituted the appellate division as a court of three judges. Congress approved this measure in a 1958 amendment to § 22 of the Act, 72 Stat. 178. See Corn v. Guam Coral Co., 318 F.2d 622, 627 (CA9 1963); letter of Judge Albert B. Maris, judicial advisor to Guam, to Chairman, Committee on Interior and Insular Affairs, House of Representatives, Mar. 14, 1957, reproduced in S.Rep. No. 1582, 85th Cong., 2d Sess., 7-9 (1958); id., at 4-5, U.S.Code Cong. & Admin.News 1958, p. 2623.
3
The Court of Appeals for the Ninth Circuit held that the Superior Court's original jurisdiction is exclusive and not concurrent with the District Court. Agana Bay Dev. Co. (Hong Kong) Ltd. v. Supreme Court of Guam, 529 F.2d 952, 955 n. 4 (1976). This holding is not contested here.
4
The Code of Civil Procedure provisions repealed by the Court Reorganization Act had provided that the District Court "shall have jurisdiction of appeals from the judgments, orders and decrees of the Island Court in criminal causes as provided in the Penal Code, Part II, Title VIII, and in civil causes . . .." Guam Code Civ.Proc. § 63 (1953).
5
The Court of Appeals convened en banc after respondent unsuccessfully sought certiorari before judgment in this Court. 425 U.S. 960, 96 S.Ct. 1742, 48 L.Ed.2d 205 (1976).
6
Section 23(a), as enacted in 1950, authorized appeals from final judgments of the District Court of Guam to the Court of Appeals in federal question, habeas corpus, and "all other civil cases where the value in controversy exceed(ed) $5,000 . . . ." Congress repealed this provision in 1951, 65 Stat. 729, but transferred its coverage to 28 U.S.C. § 1291 and thus expanded appealability to criminal cases raising only issues of local law, and to civil cases raising only issues of local law with value in controversy of less than $5,000. 65 Stat. 726. Review of certain interlocutory orders was also authorized by including the District Court of Guam within the coverage of 28 U.S.C. § 1292. 65 Stat. 726. See S.Rep. No. 1020, 82d Cong., 1st Sess., 16 (1951), U.S.Code Cong. & Admin.Serv. 1951, p. 2578.
Under § 23(b) as enacted in 1950 direct appeals from the District Court to this Court were available in cases to which the United States was a party and in which the District Court held an Act of Congress unconstitutional. This provision was continued without significant change in 1951 by including the District Court of Guam within the coverage of 28 U.S.C. § 1252. 65 Stat. 726.
7
The Organic Act of 1950 does not on its face require that the original jurisdiction of the District Court over questions arising under federal law be exclusive, but the implementing legislation passed by Guam in 1951 left federal-question jurisdiction exclusively in the District Court by granting jurisdiction to the Guam courts only over cases arising under local law. Guam Code Civ.Proc. §§ 82, 102, 112 (1953). This interpretation in Agana Bay Dev. Co. (Hong Kong) Ltd. v. Supreme Court of Guam, supra, at 529 F.2d 952, 954, is also not contested here. See n. 3, supra.
8
See n. 6, supra.
9
This case does not present, and we intimate no view upon, the question of what categories of cases the Guam Legislature is authorized to determine are nonappealable under § 22 of the Act.
10
See, e. g., 31 Stat. 141 (§ 86), 36 Stat. 1087, 43 Stat. 936 (Hawaii); 31 Stat. 321 (§§ 504, 507) (Alaska); 31 Stat. 77 (§ 35), 38 Stat. 803, 39 Stat. 951 (§§ 42, 43) (Puerto Rico); 76A Stat. 51 (Canal Zone); 39 Stat. 1132 (§ 2), 43 Stat. 936, 49 Stat. 1807 (§§ 25, 30), 48 U.S.C. § 1612, 90 Stat. 2899 (Virgin Islands); 90 Stat. 263 (§§ 402, 403) (Northern Mariana Islands).
We note that Pub.L. 94-584, enacted in 1976 about a month before our grant of certiorari in this case, authorizes Guam to adopt a constitution for its own self-government but expressly provides that a provision of the territorial constitution establishing a system of local courts "shall become effective no sooner than upon the enactment of legislation regulating the relationship between the local courts of Guam with the Federal judicial system." § 2(b) (7), 90 Stat. 2899. This suggests that Congress contemplates that Guam's judiciary should be treated like the judiciaries of other Territories whose judgments are subject to review by Art. III courts. The Guam
Legislature had already enacted legislation to provide for a constitutional convention. Act of Dec. 10, 1976, Guam Pub.L. 13-202. Although this may eventually produce a judicial system complying with § 2(b)(7) of Pub.L. 94-584 and subject to appellate review in Art. III courts, we perceive nothing in this prospect that should cause us to abstain from decision of the issues presented in this case.
1
See U.S. Dept. of Commerce, Statistical Abstract of the United States, 855, 856 (1976); 8 U.S.C. § 1407; Guam Govt. Code § 2056 (1970).
2
This statute, prior to a 1958 amendment, provided in pertinent part:
"There is hereby created a court of record to be designated the 'District Court of Guam', and the judicial authority of Guam shall be vested in the District Court of Guam and in such court or courts as may have been or may hereafter be established by the laws of Guam. The District Court of Guam shall have, in all causes arising under the laws of the United States, the jurisdiction of a district court of the United States as such court is defined in section 451 of title 28, United States Code, and shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it, and shall have such appellate jurisdiction as the legislature may determine. The jurisdiction of and the procedure in the courts of Guam other than the District Court of Guam shall be prescribed by the laws of Guam."
3
Nowhere in respondent's presentation to this Court is there any claim of federal constitutional or statutory infirmities in his conviction for violation of the laws of Guam.
| 89
|
431 U.S. 209
97 S.Ct. 1782
52 L.Ed.2d 261
D. Louis ABOOD et al., Appellants,v.DETROIT BOARD OF EDUCATION et al.
No. 75-1153.
Argued Nov. 9, 1976.
Decided May 23, 1977.
Rehearing Denied June 27, 1977.
See 433 U.S. 915, 97 S.Ct. 2989.
Syllabus
A Michigan statute authorizing union representation of local governmental employees permits an "agency shop" arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues. Appellant teachers filed actions (later consolidated) in Michigan state court against appellee Detroit Board of Education and appellee Union (which represented teachers employed by the Board) and Union officials, challenging the validity of the agency-shop clause in a collective-bargaining agreement between the Board and the Union. The complaints alleged that appellants were unwilling or had refused to pay Union dues, that they opposed collective bargaining in the public sector, that the Union was engaged in various political and other ideological activities that appellants did not approve and that were not collective-bargaining activities, and prayed that the agency-shop clause be declared invalid under state law and under the United States Constitution as a deprivation of appellants' freedom of association protected by the First and Fourteenth Amendments. The trial court dismissed the actions for failure to state a claim upon which relief could be granted. The Michigan Court of Appeals, while reversing and remanding on other grounds, upheld the constitutionality of the agency-shop clause, and, although recognizing that the expenditure of compulsory service charges to further "political purposes" unrelated to collective bargaining could violate appellants' First and Fourteenth Amendment rights, held that since the complaints had failed to allege that appellants had notified the Union as to those causes and candidates to which they objected, appellants were not entitled to restitution of any portion of the service charges. Held :
1. Insofar as the service charges are used to finance expenditures by the Union for collective-bargaining, contract-administration, and grievance-adjustment purposes, the agency-shop clause is valid. Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112; Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141. Pp. 217-232.
(a) That government employment is involved, rather than private employment, does not mean that Hanson, supra, and Street, supra, can be distinguished by relying in this case upon the doctrine that public employment cannot be conditioned upon the surrender of First Amendment rights, for the railroad employees' claim in Hanson that a union-shop agreement was invalid failed not because there was no governmental action but because there was no First Amendment violation. Pp. 226-227.
(b) Although public employee unions' activities are political to the extent they attempt to influence governmental policymaking, the differences in the nature of collective bargaining between the public and private sectors do not mean that a public employee has a weightier First Amendment interest than a private employee in not being compelled to contribute to the costs of exclusive union representation. A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint, but, besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private, orally or in writing, and, with some exceptions not pertinent here, is free to participate in the full range of political and ideological activities open to other citizens. Pp. 227-232.
2. The principles that under the First Amendment an individual should be free to believe as he will and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State, prohibit appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public schoolteacher. Pp. 232-237.
(a) That appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights. P. 234.
(b) The Constitution requires that a union's expenditures for ideological causes not germane to its duties as a collective-bargaining representative be financed from charges, dues, or assessments paid by employees who do not object to advancing such causes and who are not coerced into doing so against their will by the threat of loss of governmental employment. Pp. 234-235.
3. The Michigan Court of Appeals erred in holding that appellants were entitled to no relief even if they can prove their allegations and in depriving them of their right to such remedies as enjoining the Union from expending the service charges for ideological causes opposed by appellants, or ordering a refund of a portion of such charges, in the proportion such expenditures bear to the total Union expenditures. Hanson, supra; Railway Clerks v. Allen, 373 U.S. 113, 83 S.Ct. 1158, 10 L.Ed.2d 235. In view, however, of the fact that since the commencement of this litigation appellee Union has adopted an internal Union remedy for dissenters, it may be appropriate to defer further judicial proceedings pending the voluntary utilization by the parties of that internal remedy as a possible means of settling the dispute. Pp. 237-242.
60 Mich.App. 92, 230 N.W.2d 322, vacated and remanded.
Sylvester Petro, Winston-Salem, N. C., for appellants.
Theodore Sachs, Detroit, Mich., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
The State of Michigan has enacted legislation authorizing a system for union representation of local governmental employees. A union and a local government employer are specifically permitted to agree to an "agency shop" arrangement, whereby every employee represented by a union even though not a union member must pay to the union, as a condition of employment, a service fee equal in amount to union dues. The issue before us is whether this arrangement violates the constitutional rights of government employees who object to public-sector unions as such or to various union activities financed by the compulsory service fees.
2
* After a secret ballot election, the Detroit Federation of Teachers (Union) was certified in 1967 pursuant to Michigan law as the exclusive representative of teachers employed by the Detroit Board of Education (Board).1 The Union and the Board thereafter concluded a collective-bargaining agreement effective from July 1, 1969, to July 1, 1971. Among the agreement's provisions was an "agency shop" clause, requiring every teacher who had not become a Union member within 60 days of hire (or within 60 days of January 26, 1970, the effective date of the clause) to pay the Union a service charge equal to the regular dues required of Union members. A teacher who failed to meet this obligation was subject to discharge. Nothing in the agreement, however, required any teacher to join the Union, espouse the cause of unionism, or participate in any other way in Union affairs.
3
On November 7, 1969 more than two months before the agency-shop clause was to become effective Christine Warczak and a number of other named teachers filed a class action in a state court, naming as defendants the Board, the Union, and several Union officials. Their complaint, as amended, alleged that they were unwilling or had refused to pay dues2 and that they opposed collective bargaining in the public sector. The amended complaint further alleged that the Union "carries on various social activities for the benefit of its members which are not available to non-members as a matter of right," and that the Union is engaged
4
"in a number and variety of activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve, and in which they will have no voice, and which are not and will not be collective bargaining activities, i. e., the negotiation and administration of contracts with Defendant Board, and that a substantial part of the sums required to be paid under said Agency Shop Clause are used and will continue to be used for the support of such activities and programs, and not solely for the purpose of defraying the cost of Defendant Federation of its activities as bargaining agent for teachers employed by Defendant Board."3
5
The complaint prayed that the agency-shop clause be declared invalid under state law and also under the United States Constitution as a deprivation of, inter alia, the plaintiffs' freedom of association protected by the First and Fourteenth Amendments, and for such further relief as might be deemed appropriate.
6
Upon the defendants' motion for summary judgment, the trial court dismissed the action for failure to state a claim upon which relief could be granted.4 Warczak v. Board of Education, 73 LRRM 2237 (Cir. Ct. Wayne County). The plaintiffs appealed, and while their appeal was pending the Michigan Supreme Court ruled in Smigel v. Southgate Community School Dist., 388 Mich. 531, 202 N.W.2d 305, that state law prohibited an agency shop in the public sector. Accordingly, the judgment in the Warczak case was vacated and remanded to the trial court for further proceedings consistent with the Smigel decision.
7
Meanwhile, D. Louis Abood and other named teachers had filed a separate action in the same state trial court. The allegations in the complaint were virtually identical to those in Warczak,5 and similar relief was requested.6 This second action was held in abeyance pending disposition of the Warczak appeal, and when that case was remanded the two cases were consolidated in the trial court for consideration of the defendants' renewed motion for summary judgment.
8
On November 5, 1973, that motion was granted. The trial court noted that following the Smigel decision, the Michigan Legislature had in 1973 amended its Public Employment Relations Act so as expressly to authorize an agency shop. 1973 Mich.Pub.Acts, No. 25, codified as Mich.Comp.Laws § 432.210(1)(c).7 This amendment was applied retroactively by the trial court to validate the agency-shop clause predating 1973 as a matter of state law, and the court ruled further that such a clause does not violate the Federal Constitution.
9
The plaintiffs' appeals were consolidated by the Michigan Court of Appeals, which ruled that the trial court had erred in giving retroactive application to the 1973 legislative amendment. The appellate court proceeded, however, to consider the constitutionality of the agency-shop clause, and upheld its facial validity on the authority of this Court's decision in Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, which upheld the constitutionality under the First Amendment of a union-shop clause, authorized by the Railway Labor Act, requiring financial support of the exclusive bargaining representative by every member of the bargaining unit. Id., at 238, 76 S.Ct., at 721. Noting, however, that Michigan law also permits union expenditures for legislative lobbying and in support of political candidates, the state appellate court identified an issue explicitly not considered in Hanson the constitutionality of using compulsory service charges to further "political purposes" unrelated to collective bargaining. Although recognizing that such expenditures "could violate plaintiffs' First and Fourteenth Amendment rights," the court read this Court's more recent decisions to require that an employee who seeks to vindicate such rights must "make known to the union those causes and candidates to which he objects." Since the complaints had failed to allege that any such notification had been given, the court held that the plaintiffs were not entitled to restitution of any portion of the service charges. The trial court's error on the retroactivity question, however, led the appellate court to reverse and remand the case.8 60 Mich.App. 92, 230 N.W.2d 322. After the Supreme Court of Michigan denied review, the plaintiffs appealed to this Court, 28 U.S.C. § 1257(2), and we noted probable jurisdiction, 425 U.S. 949, 96 S.Ct. 1723, 48 L.Ed.2d 192.9
II
A.
10
Consideration of the question whether an agency-shop provision in a collective-bargaining agreement covering governmental employees is, as such, constitutionally valid must begin with two cases in this Court that on their face go far toward resolving the issue. The cases are Railway Employes' Dept. v. Hanson, supra, and Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141.
11
In the Hanson case a group of railroad employees brought an action in a Nebraska court to enjoin enforcement of a union-shop agreement.10 The challenged clause was authorized, and indeed shielded from any attempt by a State to prohibit it, by the Railway Labor Act, 45 U.S.C. § 152 Eleventh.11 The trial court granted the relief requested. The Nebraska Supreme Court upheld the injunction on the ground that employees who disagreed with the objectives promoted by union expenditures were deprived of the freedom of association protected by the First Amendment. This Court agreed that "justiciable questions under the First and Fifth Amendments were presented," 351 U.S., at 231, 76 S.Ct., at 718,12 but reversed the judgment of the Nebraska Supreme Court on the merits. Acknowledging that "(m)uch might be said pro and con " about the union shop as a policy matter, the Court noted that it is Congress that is charged with identifying "(t)he ingredients of industrial peace and stabilized labor-management relations . . . ." Id., at 233-234, 76 S.Ct. at 719. Congress determined that it would promote peaceful labor relations to permit a union and an employer to conclude an agreement requiring employees who obtain the benefit of union representation to share its cost, and that legislative judgment was surely an allowable one. Id., at 235, 76 S.Ct. at 719.
12
The record in Hanson contained no evidence that union dues were used to force ideological conformity or otherwise to impair the free expression of employees, and the Court noted that "(i)f 'assessments' are in fact imposed for purposes not germane to collective bargaining, a different problem would be presented." Ibid. at 720. (footnote omitted). But the Court squarely held that "the requirement for financial support of the collective-bargaining agency by all who receive the benefits of its work . . . does not violate . . . the First . . . Amendmen(t)." Id., at 238, 76 S.Ct., at 721.
13
The Court faced a similar question several years later in the Street case, which also involved a challenge to the constitutionality of a union shop authorized by the Railway Labor Act. In Street, however, the record contained findings that the union treasury to which all employees were required to contribute had been used "to finance the campaigns of candidates for federal and state offices whom (the plaintiffs) opposed, and to promote the propagation of political and economic doctrines, concepts and ideologies with which (they) disagreed." 367 U.S., at 744, 81 S.Ct., at 1787.
14
The Court recognized, id., at 749, that these findings presented constitutional "questions of the utmost gravity" not decided in Hanson, and therefore considered whether the Act could fairly be construed to avoid these constitutional issues. 367 U.S., at 749-750, 81 S.Ct., at 1789-90.13 The Court concluded that the Act could be so construed, since only expenditures related to the union's functions in negotiating and administering the collective-bargaining agreement and adjusting grievances and disputes fell within "the reasons . . . accepted by Congress why authority to make union-shop agreements was justified," id., at 768, 81 S.Ct. at 1800. The Court rule, therefore, that the use of compulsory union dues for political purposes violated the Act itself. Nonetheless, it found that an injunction against enforcement of the union-shop agreement as such was impermissible under Hanson, and remanded the case to the Supreme Court of Georgia so that a more limited remedy could be devised.
15
The holding in Hanson, as elaborated in Street, reflects familiar doctrines in the federal labor laws. The principle of exclusive union representation, which underlies the National Labor Relations Act14 as well as the Railway Labor Act, is a central element in the congressional structuring of industrial relations. E. g., Emporium Capwell Co. v. Western Addition Community Org., 420 U.S. 50, 62-63, 95 S.Ct. 977, 984-85, 43 L.Ed.2d 12; NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 2006, 18 L.Ed.2d 1123; Medo Corp. v. NLRB, 321 U.S. 678, 684-685, 64 S.Ct. 830, 833, 88 L.Ed. 1007; Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 545-549, 57 S.Ct. 592, 598-600, 81 L.Ed. 789. The designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment. It prevents inter-union rivalries from creating dissension within the work force and eliminating the advantages to the employee of collectivization. It also frees the employer from the possibility of facing conflicting demands from different unions, and permits the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations. See generally Emporium Capwell Co. v. Western Addition Community Org., supra, 420 U.S. at 67-70, 95 S.Ct., at 987-988. S.Rep.No.573, 74th Cong., 1st Sess., 13 (1935).
16
The designation of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones. They often entail expenditure of much time and money. See Street, 367 U.S., at 760, 81 S.Ct., at 1795. The services of lawyers, expert negotiators, economists, and a research staff, as well as general administrative personnel, may be required. Moreover, in carrying out these duties, the union is obliged "fairly and equitably to represent all employees . . ., union and nonunion," within the relevant unit. Id., at 761, 81 S.Ct., at 1796.15 A unionshop arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become "free riders" to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees. Ibid.; see Oil Workers v. Mobil Oil Corp., 426 U.S. 407, 415, 96 S.Ct. 2140, 2145, 48 L.Ed.2d 736; NLRB v. General Motors, 373 U.S. 734, 740-741, 83 S.Ct. 1453, 1458, 10 L.Ed.2d 670.
17
To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests. An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union's policy in negotiating a medical benefits plan. One individual might disagree with a union policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class, while another might have economic or political objections to unionism itself. An employee might object to the union's wage policy because it violates guidelines designed to limit inflation, or might object to the union's seeking a clause in the collective-bargaining agreement proscribing racial discrimination. The examples could be multiplied. To be required to help finance the union as a collective-bargaining agent might well be thought, therefore, to interfere in some way with an employee's freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.16 But the judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress. "The furtherance of the common cause leaves some leeway for the leadership of the group. As long as they act to promote the cause which justified bringing the group together, the individual cannot withdraw his financial support merely because he disagrees with the group's strategy. If that were allowed, we would be reversing the Hanson case, sub silentio." Machinists v. Street, 367 U.S., at 778, 81 S.Ct., at 1805. (Douglas, J., concurring).
B
18
The National Labor Relations Act leaves regulation of the labor relations of state and local governments to the States. See 29 U.S.C. § 152(2). Michigan has chosen to establish for local government units a regulatory scheme which, although not identical in every respect to the NLRA or the Railway Labor Act,17 is broadly modeled after federal law. E. g., Rockwell v. Crestwood School Dist. Bd. of Ed., 393 Mich. 616, 635-636, 227 N.W.2d 736, 744-745, appeal dismissed sub nom. Crestwood Ed. Assn. v. Board of Ed. of Crestwood, 427 U.S. 901, 96 S.Ct. 3184, 49 L.Ed.2d 1195; Detroit Police Officers Assn. v. Detroit, 391 Mich. 44, 53, 214 N.W.2d 803, 807-808; Michigan Employment Relations Comm'n v. Reeths-Puffer School Dist., 391 Mich. 253, 260, and n. 11, 215 N.W.2d 672, 675, and n. 11. Under Michigan law employees of local government units enjoy rights parallel to those protected under federal legislation: the rights to self-organization and to bargain collectively, Mich.Comp.Laws §§ 423.209, 423.215 (1970); see 29 U.S.C. § 157; 45 U.S.C. § 152 Fourth; and the right to secret-ballot representation elections, Mich.Comp.Laws § 423.212 (1970); see 29 U.S.C. § 159(e)(1); 45 U.S.C. § 152 Ninth.
19
Several aspects of Michigan law that mirror provisions of the Railway Labor Act are of particular importance here. A union that obtains the support of a majority of employees in the appropriate bargaining unit is designated the exclusive representative of those employees. Mich.Comp.Laws § 423.211 (1970).18 A union so designated is under a duty of fair representation to all employees in the unit, whether or not union members. E. g., Lowe v. Hotel & Restaurant Employees Local 705, 389 Mich. 123, 145-152, 205 N.W.2d 167, 177-180; Wayne County Community College Federation of Teachers Local 2000 v. Poe, 1976 Mich.Emp.Rel.Comm'n 347, 350-353; Local 836, AFSCME v. Solomon, 1976 Mich.Emp.Rel.Comm'n 84, 89. And in carrying out all of its various responsibilities, a recognized union may seek to have an agency-shop clause included in a collective-bargaining agreement. Mich.Comp.Laws § 423.210(1)(c) (1970). Indeed, the 1973 amendment to the Michigan Law19 was specifically designed to authorize agency shops in order that "employees in the bargaining unit . . . share fairly in the financial support of their exclusive bargaining representative . . . ." § 423.210(2).
20
The governmental interests advanced by the agency-shop provision in the Michigan statute are much the same as those promoted by similar provisions in federal labor law. The confusion and conflict that could arise if rival teachers' unions, holding quite different views as to the proper class hours, class sizes, holidays, tenure provisions, and grievance procedures, each sought to obtain the employer's agreement, are no different in kind from the evils that the exclusivity rule in the Railway Labor Act was designed to avoid. See Madison School Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 178, 97 S.Ct. 421, 425, 50 L.Ed.2d 376 (Brennan, J., concurring in judgment). The desirability of labor peace is no less important in the public sector, nor is the risk of "free riders" any smaller.
21
Our province is not to judge the wisdom of Michigan's decision to authorize the agency shop in public employment.20 Rather, it is to adjudicate the constitutionality of that decision. The same important government interests recognized in the Hanson and Street cases presumptively support the impingement upon associational freedom created by the agency shop here at issue. Thus, insofar as the service charge is used to finance expenditures by the Union for the purposes of collective bargaining, contract administration, and grievance adjustment, those two decisions of this Court appear to require validation of the agency-shop agreement before us.
22
While recognizing the apparent precedential weight of the Hanson and Street cases, the appellants advance two reasons why those decisions should not control decision of the present case. First, the appellants note that it is government employment that is involved here, thus directly implicating constitutional guarantees, in contrast to the private employment that was the subject of the Hanson and Street decisions. Second, the appellants say that in the public sector collective bargaining itself is inherently "political," and that to require them to give financial support to it is to require the "ideological conformity" that the Court expressly found absent in the Hanson case. 351 U.S., at 238, 76 S.Ct., at 721. We find neither argument persuasive.
23
Because it is employment by the State that is here involved, the appellants suggest that this case is governed by a long line of decisions holding that public employment cannot be conditioned upon the surrender of First Amendment rights.21 But, while the actions of public employers surely constitute "state action," the union shop, as authorized by the Railway Labor Act, also was found to result from governmental action in Hanson.22 The plaintiffs' claims in Hanson failed, not because there was no governmental action, but because there was no First Amendment violation.23 The appellants' reliance on the "unconstitutional conditions" doctrine is therefore misplaced.
24
The appellants' second argument is that in any event collective bargaining in the public sector is inherently "political" and thus requires a different result under the First and Fourteenth Amendments. This contention rests upon the important and often-noted differences in the nature of collective bargaining in the public and private sectors.24 A public employer, unlike his private counterpart, is not guided by the profit motive and constrained by the normal operation of the market. Municipal services are typically not priced, and where they are they tend to be regarded as in some sense "essential" and therefore are often price-inelastic. Although a public employer, like a private one, will wish to keep costs down, he lacks an important discipline against agreeing to increases in labor costs that in a market system would require price increases. A public-sector union is correspondingly less concerned that high prices due to costly wage demands will decrease output and hence employment.
25
The government officials making decisions as the public "employer" are less likely to act as a cohesive unit than are managers in private industry, in part because different levels of public authority department managers, budgetary officials, and legislative bodies are involved, and in part because each official may respond to a distinctive political constituency. And the ease of negotiating a final agreement with the union may be severely limited by statutory restrictions, by the need for the approval of a higher executive authority or a legislative body, or by the commitment of budgetary decisions of critical importance to others.
26
Finally, decisionmaking by a public employer is above all a political process. The officials who represent the public employer are ultimately responsible to the electorate, which for this purpose can be viewed as comprising three overlapping classes of voters taxpayers, users of particular government services, and government employees. Through exercise of their political influence as part of the electorate, the employees have the opportunity to affect the decisions of government representatives who sit on the other side of the bargaining table. Whether these representatives accede to a union's demands will depend upon a blend of political ingredients, including community sentiment about unionism generally and the involved union in particular, the degree of taxpayer resistance, and the views of voters as to the importance of the service involved and the relation between the demands and the quality of service. It is surely arguable, however, that permitting public employees to unionize and a union to bargain as their exclusive representative gives the employees more influence in the decisionmaking process than is possessed by employees similarly organized in the private sector.
27
The distinctive nature of public-sector bargaining has led to widespread discussion about the extent to which the law governing labor relations in the private sector provides an appropriate model. To take but one example, there has been considerable debate about the desirability of prohibiting public employee unions from striking,25 a step that the State of Michigan itself has taken, Mich.Comp.Laws § 423.202 (1970). But although Michigan has not adopted the federal model of labor relations in every respect, it has determined that labor stability will be served by a system of exclusive representation and the permissive use of an agency shop in public employment. As already stated, there can be no principled basis for according that decision less weight in the constitutional balance than was given in Hanson to the congressional judgment reflected in the Railway Labor Act.26 The only remaining constitutional inquiry evoked by the appellants' argument, therefore, is whether a public employee has a weightier First Amendment interest than a private employee in not being compelled to contribute to the costs of exclusive union representation. We think he does not.
28
Public employees are not basically different from private employees; on the whole, they have the same sort of skills, the same needs, and seek the same advantages. "The uniqueness of public employment is not in the employees nor in the work performed; the uniqueness is in the special character of the employer." Summers, Public Sector Bargaining: Problems of Governmental Decisionmaking, 44 U.Cin.L.Rev. 669, 670 (1975) (emphasis added). The very real differences between exclusive-agent collective bargaining in the public and private sectors are not such as to work any greater infringement upon the First Amendment interests of public employees. A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint. Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private orally or in writing. With some exceptions not pertinent here,27 public employees are free to participate in the full range of political activities open to other citizens. Indeed, just this Term we have held that the First and Fourteenth Amendments protect the right of a public school teacher to oppose, at a public school board meeting, a position advanced by the teachers' union. Madison School Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376. In so ruling we recognized that the principle of exclusivity cannot constitutionally be used to muzzle a public employee who, like any other citizen, might wish to express his view about governmental decisions concerning labor relations, id., at 174, 97 S.Ct. at 426.
29
There can be no quarrel with the truism that because public employee unions attempt to influence governmental policymaking, their activities and the views of members who disagree with them may be properly termed political. But that characterization does not raise the ideas and beliefs of public employees onto a higher plane than the ideas and beliefs of private employees. It is no doubt true that a central purpose of the First Amendment " 'was to protect the free discussion of governmental affairs.' " Post, at 259, quoting Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659, and Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484. But our cases have never suggested that expression about philosophical social, artistic, economic, literary, or ethical matters to take a nonexhaustive list of labels is not entitled to full First Amendment protection.28 Union members in both the public and private sectors may find that a variety of union activities conflict with their beliefs. Compare, e. g., supra, at 222, with post, at 256-257. Nothing in the First Amendment or our cases discussing its meaning makes the question whether the adjective "political" can properly be attached to those beliefs the critical constitutional inquiry.
30
The differences between public- and private-sector collective bargaining simply do not translate into differences in First Amendment rights. Even those commentators most acutely aware of the distinctive nature of public-sector bargaining and most seriously concerned with its policy implications agree that "(t)he union security issue in the public sector . . . is fundamentally the same issue . . . as in the private sector. . . . No special dimension results from the fact that a union represents public rather than private employees." H. Wellington & R. Winter, Jr., The Unions and the Cities 95-96 (1971). We conclude that the Michigan Court of Appeals was correct in viewing this Court's decisions in Hanson and Street as controlling in the present case insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.
C
31
Because the Michigan Court of Appeals ruled that state law "sanctions the use of nonunion members' fees for purposes other than collective bargaining," 60 Mich.App., at 99, 230 N.W.2d, at 326, and because the complaints allege that such expenditures were made, this case presents constitutional issues not decided in Hanson or Street. Indeed, Street embraced an interpretation of the Railway Labor Act not without its difficulties, see 367 U.S., at 784-786, 81 S.Ct. at 1807-08. (Black, J., dissenting); id., at 799-803, 81 S.Ct. at 1814-16. (Frankfurter, J., dissenting), precisely to avoid facing the constitutional issues presented by the use of union-shop dues for political and ideological purposes unrelated to collective bargaining, id., at 749-750, 81 S.Ct. at 1789-90. Since the state court's construction of the Michigan statute is authoritative, however, we must confront those issues in this case.29
32
Our decisions establish with unmistakable clarity that the freedom of an individual to associate for the purpose of advancing beliefs and ideas is protected by the First and Fourteenth Amendments. E. g., Elrod v. Burns, 427 U.S. 347, 355-357, 96 S.Ct. 2673, 2680-82, 49 L.Ed.2d 547 (plurality opinion); Cousins v. Wigoda, 419 U.S. 477, 487, 95 S.Ct. 541, 547, 42 L.Ed.2d 595; Kusper v. Pontikes, 414 U.S. 51, 56-57, 94 S.Ct. 303, 307, 38 L.Ed.2d 260; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-461, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488. Equally clear is the proposition that a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment. E. g., Elrod v. Burns, supra, 427 U.S. at 357-360, 96 S.Ct. at 2681-2683 and cases cited; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629. The appellants argue that they fall within the protection of these cases because they have been prohibited, not from actively associating, but rather from refusing to associate. They specifically argue that they may constitutionally prevent the Union's spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative. We have concluded that this argument is a meritorious one.
33
One of the principles underlying the Court's decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659, was that contributing to an organization for the purpose of spreading a political message is protected by the First Amendment. Because "(m)aking a contribution . . . enables like-minded persons to pool their resources in furtherance of common political goals," id., at 22, 96 S.Ct. at 636, the Court reasoned that limitations upon the freedom to contribute "implicate fundamental First Amendment interests," id., at 23, 96 S.Ct. at 636.30
34
The fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights.31 For at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State. See Elrod v. Burns, supra, 427 U.S. at 356-357, 95 S.Ct. at 2681-82; Stanley v. Georgia, 394 U.S. 557, 565, 89 S.Ct. 1243, 1248, 22 L.Ed.2d 542; Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S.Ct. 900, 903, 84 L.Ed. 1213. And the freedom of belief is no incidental or secondary aspect of the First Amendment's protections:
35
"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628.
36
These principles prohibit a State from compelling any individual to affirm his belief in God, Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982, or to associate with a political party, Elrod v. Burns, supra ; see 427 U.S., at 363-364, n. 17, 95 S.Ct., at 2685, as a condition of retaining public employment. They are no less applicable to the case at bar, and they thus prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher.
37
We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative.32 Rather, the Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.
38
There will, of course, be difficult problems in drawing lines between collective-bargaining activities, for which contributions may be compelled, and ideological activities unrelated to collective bargaining, for which such compulsion is prohibited.33 The Court held in Street, as a matter of statutory construction, that a similar line must be drawn under the Railway Labor Act, but in the public sector the line may be somewhat hazier. The process of establishing a written collective-bargaining agreement prescribing the terms and conditions of public employment may require not merely concord at the bargaining table, but subsequent approval by other public authorities; related budgetary and appropriations decisions might be seen as an integral part of the bargaining process. We have no occasion in this case, however, to try to define such a dividing line. The case comes to us after a judgment on the pleadings, and there is no evidentiary record of any kind. The allegations in the complaints are general ones, see supra, at 212-213, and the parties have neither briefed nor argued the question of what specific Union activities in the present context properly fall under the definition of collective bargaining. The lack of factual concreteness and adversary presentation to aid us in approaching the difficult line-drawing questions highlights the importance of avoiding unnecessary decision of constitutional questions.34 All that we decide is that the general allegations in the complaints, if proved, establish a cause of action under the First and Fourteenth Amendments.
III
39
In determining what remedy will be appropriate if the appellants prove their allegations, the objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the Union's ability to require every employee to contribute to the cost of collective-bargaining activities.35 This task is simplified by the guidance to be had from prior decisions. In Street, the plaintiffs had proved at trial that expenditures were being made for political purposes of various kinds, and the Court found those expenditures illegal under the Railway Labor Act. See supra, at 219-220. Moreover, in that case each plaintiff had "made known to the union representing his craft or class his dissent from the use of his money for political causes which he opposes." 367 U.S., at 750, 81 S.Ct., at 1790; see id., at 771, 81 S.Ct. at 1801. The Court found that "(i)n that circumstance, the respective unions were without power to use payments thereafter tendered by them for such political causes." Ibid. Since, however, Hanson had established that the union-shop agreement was not unlawful as such, the Court held that to enjoin its enforcement would "(sweep) too broadly." 367 U.S., at 771, 81 S.Ct., at 1801. The Court also found that an injunction prohibiting the union from expending dues for political purposes would be inappropriate, not only because of the basic policy reflected in the Norris-La Guardia Act36 against enjoining labor unions, but also because those union members who do wish part of their dues to be used for political purposes have a right to associate to that end "without being silenced by the dissenters." Id., at 772-773, 81 S.Ct., at 1802.37
40
After noting that "dissent is not to be presumed" and that only employees who have affirmatively made known to the union their opposition to political uses of their funds are entitled to relief, the Court sketched two possible remedies: First, "an injunction against expenditure for political causes opposed by each complaining employee of a sum, from those moneys to be spent by the union for political purposes, which is so much of the moneys exacted from him as is the proportion of the union's total expenditures made for such political activities to the union's total budget"; and second, restitution of a fraction of union dues paid equal to the fraction of total union expenditures that were made for political purposes opposed by the employee. Id., at 774-775, 81 S.Ct., at 1802-03.38
41
The Court again considered the remedial question in Railway Clerks v. Allen, 373 U.S. 113, 83 S.Ct. 1158, 10 L.Ed.2d 235. In that case employees who had refused to pay union-shop dues obtained injunctive relief in state court against enforcement of the union-shop agreement. The employees had not notified the union prior to bringing the lawsuit of their opposition to political expenditures, and at trial, their testimony was principally that they opposed such expenditures, as a general matter. Id., at 118-119, n. 5, 83 S.Ct., at 1161-62. The Court held that the employees had adequately established their cause of action by manifesting "opposition to any political expenditures by the union," id., at 118, 83 S.Ct., at 1162 (emphasis in original), and that the requirement in Street that dissent be affirmatively indicated was satisfied by the allegations in the complaint that was filed, 373 U.S., at 118-119, and n. 6, 83 S.Ct., at 1161-62.39 The Court indicated again the appropriateness of the two remedies sketched in Street ; reversed the judgment affirming issuance of the injunction; and remanded for determination of which expenditures were properly to be characterized as political and what percentage of total union expenditures they constituted.40
42
The Court in Allen described a "practical decree" that could properly be entered, providing for (1) the refund of a portion of the exacted funds in the proportion that union political expenditures bear to total union expenditures, and (2) the reduction of future exactions by the same proportion. 373 U.S., at 122, 83 S.Ct., at 1163. Recognizing the difficulties posed by judicial administration of such a remedy, the Court also suggested that it would be highly desirable for unions to adopt a "voluntary plan by which dissenters would be afforded an internal union remedy." Ibid. This last suggestion is particularly relevant to the case at bar, for the Union has adopted such a plan since the commencement of this litigation.41
43
Although Street and Allen were concerned with statutory rather than constitutional violations, that difference surely could not justify any lesser relief in this case. Judged by the standards of those cases, the Michigan Court of Appeals' ruling that the appellants were entitled to no relief at this juncture was unduly restrictive. For all the reasons outlined in Street, the court was correct in denying the broad injunctive relief requested. But in holding that as a prerequisite to any relief each appellant must indicate to the Union the specific expenditures to which he objects, the Court of Appeals ignored the clear holding of Allen. As in Allen, the employees here indicated in their pleadings that they opposed ideological expenditures of any sort that are unrelated to collective bargaining. To require greater specificity would confront an individual employee with the dilemma of relinquishing either his right to withhold his support of ideological causes to which he objects or his freedom to maintain his own beliefs without public disclosure.42 It would also place on each employee the considerable burden of monitoring all of the numerous and shifting expenditures made by the Union that are unrelated to its duties as exclusive bargaining representative.
44
The Court of Appeals thus erred in holding that the plaintiffs are entitled to no relief if they can prove the allegations contained in their complaints,43 and in depriving them of an opportunity to establish their right to appropriate relief, such, for example, as the kind of remedies described in Street and Allen.44 In view of the newly adopted Union internal remedy, it may be appropriate under Michigan law, even if not strictly required by any doctrine of exhaustion of remedies, to defer further judicial proceedings pending the voluntary utilization by the parties of that internal remedy as a possible means of settling the dispute.45
45
The judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
46
It is so ordered.
47
Mr. Justice REHNQUIST, concurring.
48
Had I joined the plurality opinion in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), I would find it virtually impossible to join the Court's opinion in this case. In Elrod, the plurality stated:
49
"The illuminating source to which we turn in performing the task (of constitutional adjudication) is the system of government the First Amendment was intended to protect, a democratic system whose proper functioning is indispensably dependent on the unfettered judgment of each citizen on matters of political concern. Our decision in obedience to the guidance of that source does not outlaw political parties or political campaigning and management. Parties are free to exist and their concomitant activities are free to continue. We require only that the rights of every citizen to believe as he will and to act and associate according to his beliefs be free to continue as well." Id., at 372, 96 S.Ct., at 2689, 49 L.Ed.2d 547.
50
I do not read the Court's opinion as leaving intact the "unfettered judgment of each citizen on matters of political concern" when it holds that Michigan may, consistently with the First and Fourteenth Amendments, require an objecting member of a public employees' union to contribute to the funds necessary for the union to carry out its bargaining activities. Nor does the Court's opinion leave such a member free "to believe as he will and to act and associate according to his beliefs." I agree with the Court, and with the views expressed in Mr. Justice Powell's opinion concurring in the judgment, that the positions taken by public employees' unions in connection with their collective-bargaining activities inevitably touch upon political concern if the word "political" be taken in its normal meaning. Success in pursuit of a particular collective-bargaining goal will cause a public program or a public agency to be administered in one way; failure will result in its being administered in another way.
51
I continue to believe, however, that the dissenting opinion of Mr. Justice Powell in Elrod v. Burns, supra, which I joined, correctly stated the governing principles of First and Fourteenth Amendment law in the case of public employees such as this. I am unable to see a constitutional distinction between a governmentally imposed requirement that a public employee be a Democrat or Republican or else lose his job, and a similar requirement that a public employee contribute to the collective-bargaining expenses of a labor union. I therefore join the opinion and judgment of the Court.
52
Mr. Justice STEVENS, concurring.
53
By joining the opinion of the Court, including its discussion of possible remedies, I do not imply nor do I understand the Court to imply that the remedies described in Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141, and Railway Clerks v. Allen, 373 U.S. 113, 83 S.Ct. 1158, 10 L.Ed.2d 235, would necessarily be adequate in this case or in any other case. More specifically, the Court's opinion does not foreclose the argument that the Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining. Any final decision on the appropriate remedy must await the full development of the facts at trial.*
54
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, concurring in the judgment.
55
The Court today holds that a State cannot constitutionally compel public employees to contribute to union political activities which they oppose. On this basis the Court concludes that "the general allegations in the complaints, if proved, establish a cause of action under the First and Fourteenth Amendments." Ante, at 237. With this much of the Court's opinion I agree, and I therefore join the Court's judgment remanding this case for further proceedings.
56
But the Court's holding and judgment are but a small part of today's decision. Working from the novel premise that public employers are under no greater constitutional constraints than their counterparts in the private sector, the Court apparently rules that public employees can be compelled by the State to pay full union dues to a union with which they disagree, subject only to a possible rebate or deduction if they are willing to step forward, declare their opposition to the union, and initiate a proceeding to establish that some portion of their dues has been spent on "ideological activities unrelated to collective bargaining." Ante, at 236. Such a sweeping limitation of First Amendment rights by the Court is not only unnecessary on this record; it is in my view unsupported by either precedent or reason.
57
* The Court apparently endorses the principle that the State infringes interests protected by the First Amendment when it compels an individual to support the political activities of others as a condition of employment. See ante, at 222-223, 233-235. One would think that acceptance of this principle would require a careful inquiry into the constitutional interests at stake in a case of this importance. But the Court avoids such an inquiry on the ground that it is foreclosed by this Court's decisions in Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956), and Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961). With all respect, the Court's reliance on these cases, which concerned only congressional authorization of union-shop agreements in the private sector, is misplaced.
A.
58
The issue before the Court in Hanson was the constitutionality of the Railway Labor Act's authorization of union-shop agreements in the private sector. Section 2 Eleventh of that Act, 45 U.S.C. § 152 Eleventh, provides in essence that, notwithstanding any contrary provision of state law, employers and unions are permitted to enter into voluntary agreements whereby employment is conditioned on payment of full union dues and fees. See ante, at 218 n. 11. The suit was brought by nonunion members who claimed that Congress had forced them into "ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought protected by the Bill of Rights." 351 U.S., at 236, 76 S.Ct., at 720.
59
Acceptance of this claim would have required adoption by the Court of a series of far-reaching propositions: (i) that there was sufficient governmental involvement in the private union-shop agreement to justify inquiry under the First Amendment; (ii) that a refusal to pay money to a union could be "speech" protected by the First Amendment; (iii) that Congress had interfered with or infringed that protected speech interest by authorizing union shops; and (iv) that the interference was unwarranted by any overriding congressional objective. The Court adopted only the first of these propositions: It agreed with the Supreme Court of Nebraska that § 2 Eleventh, by authorizing union-shop agreements that otherwise might be forbidden by state law, had involved Congress sufficiently to justify examination of the First Amendment claims.
60
On the merits the Court concluded that there was no violation of the First Amendment. The reasoning behind this conclusion was not elaborate. Some language in the opinion appears to suggest that even if Congress had compelled employers and employees to enter into union-shop agreements, the required financial support for the union would not infringe any protected First Amendment interest.1 But the Court did not lose sight of the distinction between governmentally compelled financial support and the actual effect of the Railway Labor Act: "The union shop provision of the Railway Labor Act is only permissive. Congress has not compelled nor required carriers and employees to enter into union shop agreements." (Footnote omitted.) 351 U.S., at 231, 76 S.Ct., at 718. As the Court later reflected in Street :
61
"(A)ll that was held in Hanson was that § 2, Eleventh was constitutional in its bare authorization of union-shop contracts requiring workers to give 'financial support' to unions legally authorized to act as their collective bargaining agents. . . ." 367 U.S., at 749, 81 S.Ct., at 1790.
62
To the extent that Hanson suggests that withholding financial support from unions is unprotected by the First Amendment against governmental compulsion, it is significantly undercut by the subsequent decision in Street. The claim before the Court in Street was similar to that in Hanson : minority employees complained that they were being forced by a union-shop agreement to pay full union dues. This time, however, the employees specifically complained that part of their dues was being used for political activities to which they were opposed. And this time the Court perceived that the constitutional questions were "of the utmost gravity." 367 U.S., at 749, 81 S.Ct., at 1789. In order to avoid having to decide those difficult questions, the Court read into the Act a restriction on a union's use of an employee's money for political activities: "(W)e hold . . . that § 2, Eleventh is to be construed to deny the unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes." Id., at 768-769, 81 S.Ct., at 1800.
63
In so reading § 2 Eleventh to avoid unnecessary constitutional decisions," 367 U.S., at 749, 81 S.Ct., at 1789, Street suggests a rethinking of the First Amendment issues decided so summarily indeed, almost viewed as inconsequential in Hanson. To be sure, precisely because the decision in Street does not rest explicitly on the Constitution, the opinion for the Court supplies no more reasoned analysis of the constitutional issues than did the opinion in Hanson. But examination of the Court's strained construction of the Railway Labor Act in light of the various separate opinions in Street suggests that the Court sought to leave open three important constitutional questions by taking the course that it did.
64
First, the Court's reading of the Act made it unnecessary to decide whether the withholding of financial support from a union's political activities is a type of "speech" protected against governmental abridgment by the First Amendment. Mr. Justice Douglas, who wrote the opinion for the Court in Hanson, and provided the necessary fifth vote in Street, believed that "use of union funds for political purposes subordinates the individual's First Amendment rights to the views of the majority." 367 U.S., at 778, 81 S.Ct., at 1805. Mr. Justice Black expressed a similar view in dissent. Id., at 790-91, 81 S.Ct., at 1810. But Mr. Justice Frankfurter, joined by Mr. Justice Harlan, strongly disagreed, id., at 806, 81 S.Ct., at 1818, and the Court's reading of the statute made it unnecessary to resolve the dispute.
65
Second, the Court's approach made it possible to reserve judgment on whether, assuming protected First Amendment interest were implicated, Congress might go further in approving private arrangements that would interfere with those interests than it could in commanding such arrangements. Mr. Justice Douglas had no doubts that the constraints on Congress were the same in either case:
66
"Since neither Congress nor the state legislatures can abridge (First Amendment) rights, they cannot grant the power to private groups to abridge them. As I read the First Amendment, it forbids any abridgment by government whether directly or indirectly." Id., at 777, 81 S.Ct., at 1804.
67
But here, too, Mr. Justice Frankfurter disagreed:
68
"(W)e must consider the difference between . . . compulsion and the absence of compulsion when Congress acts as platonically as it did, in a wholly non-coercive way. Congress has not commanded that the railroads shall employ only those workers who are members of authorized unions. . . . When we speak of the Government 'acting' in permitting the union shop, the scope and force of what Congress has done must be heeded. There is not a trace of compulsion involved no exercise of restriction by Congress on the freedom of the carriers and the unions. . . ." Id., at 806-807, 81 S.Ct., at 1818.
69
And here, too, the Court's reading of the statute permitted it to avoid an unnecessary constitutional decision.2
70
Finally, by placing its decision on statutory grounds, the Court was able to leave open the question whether, assuming the Act intruded on protected First Amendment interests, the intrusion could be justified by the governmental interest asserted on its behalf. Hanson made it unnecessary to address this issue with respect to funds exacted solely for collective bargaining.3 And by reading the Railway Labor Act to prohibit a union's use of exacted funds for political purposes, Street made it unnecessary to discuss whether authorizing such a use of union-shop funds might ever be justified.4
71
In my view, these cases can and should be read narrowly. The only constitutional principle for which they clearly stand is the narrow holding of Hanson that the Railway Labor Act's authorization of voluntary union-shop agreements in the private sector does not violate the First Amendment. They do not hold that the withholding of financial support from a union is protected speech; nor do they signify that the government could constitutionally compel employees, absent a private union-shop agreement, to pay full union dues to a union representative as a condition of employment; nor do they say anything about the kinds of governmental interest that could justify such compulsion, if indeed justification were required by the First Amendment.
B
72
The Court's extensive reliance on Hanson and Street requires it to rule that there is no constitutional distinction between what the government can require of its own employees and what it can permit private employers to do. To me the distinction is fundamental. Under the First Amendment the government may authorize private parties to enter into voluntary agreements whose terms it could not adopt as its own.
73
We stressed the importance of this distinction only recently, in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). There a New York resident had brought suit against a private utility, claiming that she had been denied due process when the utility terminated her service without notice or a hearing and alleging that the utility's summary termination procedures had been "specifically authorized and approved" by the State. In sustaining dismissal of the complaint, we held that authorization and approval did not transform the procedures of the company into the procedures of the State:
74
"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.' " Id., at 357, 95 S.Ct., at 456.
75
Had the State itself adopted the procedures it approved for the utility, it would have been subject to the full constraints of the Constitution.5
76
An analogy is often drawn between the collective-bargaining agreement in labor relations and a legislative code. This Court has said, for example, that the powers of a union under the Railway Labor Act are "comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents . . . ." Steele v. Louisville & N.R. Co., 323 U.S. 192, 202, 65 S.Ct. 226, 232, 89 L.Ed. 173 (1944). Some have argued that this analogy requires each provision of a private collective-bargaining agreement to meet the same limitations that the Constitution imposes on congressional enactments.6 But this Court has wisely refrained from adopting this view and generally has measured the rights and duties embodied in a collective-bargaining agreement only against the limitations imposed by Congress. See Emporium Capwell Co. v. Western Addition Community Org., 420 U.S. 50, 62-65, 95 S.Ct. 977, 984-86, 43 L.Ed.2d 12 (1975); NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180-181, 87 S.Ct. 2001, 2006-07, 18 L.Ed.2d 1123 (1967).7
77
Similar constitutional restraint would be wholly inappropriate in the public sector. The collective-bargaining agreement to which a public agency is a party is not merely analogous to legislation, it has all of the attributes of legislation for the subjects with which it deals. Where a teachers' union for example, acting pursuant to a state statute authorizing collective bargaining in the public sector, obtains the agreement of the school board that teachers residing outside the school district will not be hired, the provision in the bargaining agreement to that effect has the same force as if the school board had adopted it by promulgating a regulation. Indeed, the rule in Michigan is that where a municipal collective-bargaining agreement conflicts with an otherwise valid municipal ordinance, the ordinance must yield to the agreement. Detroit Police Officers Assn. v. Detroit, 391 Mich. 44, 214 N.W.2d 803 (1974) (holding that a duly enacted residency requirement for police must yield to any contrary agreement reached by collective bargaining).
78
The State in this case has not merely authorized union-shop agreements between willing parties; it has negotiated and adopted such an agreement itself. Acting through the Detroit Board of Education, the State has undertaken to compel employees to pay full fees equal in amount to dues to a union as a condition of employment. Accordingly, the Board's collective-bargaining agreement, like any other enactment of state law, is fully subject to the constraints that the Constitution imposes on coercive governmental regulation.8
79
Because neither Hanson nor Street confronted the kind of governmental participation in the agency shop that is involved here, those cases provide little or no guidance for the constitutional issues presented in this case.9 With the understanding, therefore, that the Court writes on a clean constitutional slate in the field of public-sector collective bargaining, I turn to the merits.
II
80
The Court today holds that compelling an employee to finance a union's "ideological activities unrelated to collective bargaining" violates the First Amendment regardless of any asserted governmental justification. Ante, at 236. But the Court also decides that compelling an employee to finance any union activity that may be "related" in some way to collective bargaining is permissible under the First Amendment because such compulsion is "relevant or appropriate" to asserted governmental interests. Ante, at 222-223, 225 n.20. And the Court places the burden of litigation on the individual. In order to vindicate his First Amendment rights in a union shop, the individual employee apparently must declare his opposition to the union and initiate a proceeding to determine what part of the union's budget has been allocated to activities that are both "ideological" and "unrelated to collective bargaining." Ante, at 237-241.
81
I can agree neither with the Court's rigid two-tiered analysis under the First Amendment, nor with the burden it places on the individual. Under First Amendment principles that have become settled since Hanson and Street were decided, it is now clear, first, that any withholding of financial support for a public-sector union is within the protection of the First Amendment; and, second, that the State should bear the burden of proving that any union dues or fees that it requires of nonunion employees are needed to serve paramount governmental interests.
A.
82
The initial question is whether a requirement of a school board that all of its employees contribute to a teachers' union as a condition of employment impinges upon the First Amendment interests of those who refuse to support the union, whether because they disapprove of unionization of public employees or because they object to certain union activities or positions. The Court answers this question in the affirmative: "The fact that (government employees) are compelled to make . . . contributions for political purposes works . . . an infringement of their constitutional rights," ante, at 234, and any compelled support for a union "has an impact upon" and may be thought to "interfere in some way with" First Amendment interests. Ante, at 222. I agree with the Court as far as it goes, but I would make it more explicit that compelling a government employee to give financial support to a union in the public sector regardless of the uses to which the union puts the contribution impinges seriously upon interests in free speech and association protected by the First Amendment.
83
In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), we considered the constitutional validity of the Federal Election Campaign Act of 1971, as amended in 1974, which in one of its provisions limited the amounts that individuals could contribute to federal election campaigns. We held that these limitations on political contributions "impinge on protected associational freedoms":
84
"Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals. The Act's contribution ceilings thus limit one important means of associating with a candidate or committee . . . ." Id., at 22, 96 S.Ct., at 636.
85
That Buckley dealt with a contribution limitation rather than a contribution requirement does not alter its importance for this case. An individual can no more be required to affiliate with a candidate by making a contribution than he can be prohibited from such affiliation. The only question after Buckley is whether a union in the public sector is sufficiently distinguishable from a political candidate or committee to remove the withholding of financial contributions from First Amendment protection. In my view no principled distinction exists.
86
The ultimate objective of a union in the public sector, like that of a political party, is to influence public decisionmaking in accordance with the views and perceived interests of its membership. Whether a teachers' union is concerned with salaries and fringe benefits, teacher qualifications and in-service training, pupil-teacher ratios, length of the school day, student discipline, or the content of the high school curriculum, its objective is to bring school board policy and decisions into harmony with its own views. Similarly, to the extent that school board expenditures and policy are guided by decisions made by the municipal, State, and Federal Governments the union's objective is to obtain favorable decisions and to place persons in positions of power who will be receptive to the union's viewpoint. In these respects, the public-sector union is indistinguishable from the traditional political party in this country.10
87
What distinguishes the public-sector union from the political party and the distinction is a limited one is that most of its members are employees who share similar economic interests and who may have a common professional perspective on some issues of public policy. Public school teachers, for example, have a common interest in fair teachers' salaries and reasonable pupil-teacher ratios. This suggests the possibility of a limited range of probable agreement among the class of individuals that a public-sector union is organized to represent. But I am unable to see why the likelihood of an area of consensus in the group should remove the protection of the First Amendment for the disagreements that inevitably will occur. Certainly, if individual teachers are ideologically opposed to public-sector unionism itself, as are the appellants in this case, ante, at 212-213, one would think that compelling them to affiliate with the union by contributing to it infringes their First Amendment rights to the same degree as compelling them to contribute to a political party. Under the First Amendment, the protection of speech does not turn on the likelihood or frequency of its occurrence.
88
Nor is there any basis here for distinguishing "collective-bargaining activities" from "political activities" so far as the interests protected by the First Amendment are concerned. Collective bargaining in the public sector is "political" in any meaningful sense of the word. This is most obvious when public-sector bargaining extends as it may in Michigan11 to such matters of public policy as the educational philosophy that will inform the high school curriculum. But it is also true when public-sector bargaining focuses on such "bread and butter" issues as wages, hours, vacations, and pensions. Decisions on such issues will have a direct impact on the level of public services, priorities within state and municipal budgets, creation of bonded indebtedness, and tax rates. The cost of public education is normally the largest element of a county or municipal budget. Decisions reached through collective bargaining in the schools will affect not only the teachers and the quality of education, but also the taxpayers and the beneficiaries of other important public services. Under our democratic system of government, decisions on these critical issues of public policy have been entrusted to elected officials who ultimately are responsible to the voters.12
89
Disassociation with a public-sector union and the expression of disagreement with its positions and objectives therefore lie at "the core of those activities protected by the First Amendment." Elrod v. Burns, 427 U.S. 347, 356, 96 S.Ct. 2673, 2681, 49 L.Ed.2d 547 (1976) (plurality opinion).
90
"Although First Amendment protections are not confined to 'the exposition of ideas,' Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840 (1948), 'there is practically universal agreement that a major purpose of th(e) Amendment was to protect the free discussion of governmental affairs . . . .' Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966)." Buckley, supra, 424 U.S., at 14, 96 S.Ct., at 632.
91
At the public sector union shop unquestionably impinges upon the interests protected by the First Amendment, I turn to the justifications offered for it by the Detroit Board of Education.13
B
92
"Neither the right to associate nor the right to participate in political activities is absolute . . . ." CSC v. Letter Carriers, 413 U.S. 548, 567, 93 S.Ct. 2880, 2891, 37 L.Ed.2d 796 (1973). This is particularly true in the field of public employment, where "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). Nevertheless, even in public employment, "a significant impairment of First Amendment rights must survive exacting scrutiny." Elrod v. Burns, 427 U.S., at 362, 96 S.Ct., at 2684 (plurality opinion); accord, id., at 381, 96 S.Ct., at 2693 (Powell, J., dissenting).
93
"The (governmental) interest advanced must be paramount, one of vital importance, and the burden is on the government to show the existence of such an interest. . . . (C)are must be taken not to confuse the interest of partisan organizations with governmental interests. Only the latter will suffice. Moreover, . . . the government must 'employ( ) means closely drawn to avoid unnecessary abridgment . . . .' Buckley v. Valeo, supra, 424 U.S. at 25, 96 S.Ct. 612." Id., at 362-363, 96 S.Ct. at 2684 (plurality opinion).
94
The justifications offered by the Detroit Board of Education must be tested under this settled standard of review.14
95
As the Court points out, ante, at 224-226, the interests advanced for the compulsory agency shop that the Detroit Board of Education has entered into are much the same as those advanced for federal legislation permitting voluntary agency-shop agreements in the private sector. The agency shop is said to be a necessary adjunct to the principle of exclusive union representation; it is said to reduce the risk that nonunion employees will become "free riders" by fairly distributing the costs of exclusive representation; and it is said to promote the cause of labor peace in the public sector. Ante, at 220-221. While these interests may well justify encouraging agency-shop arrangements in the private sector, there is far less reason to believe they justify the intrusion upon First Amendment rights that results from compelled support for a union as a condition of government employment.
96
In Madison School Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 176, 97 S.Ct. 421, 427, 50 L.Ed.2d 376 (1976), we expressly reserved judgment on the constitutional validity of the exclusivity principle in the public sector. The Court today decides this issue summarily:
97
"The confusion and conflict that could arise if rival teachers' unions, holding quite different views as to the proper class hours, class sizes, holidays, tenure provisions, and grievance procedures, each sought to obtain the employer's agreement, are no different in kind from the evils that the exclusivity rule in the Railway Labor Act was designed to avoid." Ante, at 224.
98
I would have thought the "conflict" in ideas about the way in which government should operate was among the most fundamental values protected by the First Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). 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 Bd. of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915), does not mean that a State or municipality may agree to set public policy on an unlimited range of issues in closed negotiations with "one category of interested individuals." Madison School Dist., supra, 429 U.S. at 175, 97 S.Ct. at 426. Such a commitment by a governmental body to exclude minority viewpoints from the councils of government would violate directly the principle that "government must afford all points of view an equal opportunity to be heard." Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972).15
99
The Court points out that the minority employee is not barred by the exclusivity principle from expressing his viewpoint, see ante, at 230. In a limited sense, this may be true. The minority employee is excluded in theory only from engaging in a meaningful dialogue with his employer on the subjects of collective bargaining, a dialogue that is reserved to the union. It is possible that paramount governmental interests may be found at least with respect to certain narrowly defined subjects of bargaining that would support this restriction on First Amendment interests. But "the burden is on the government to show the existence of such an interest." Elrod v. Burns, supra, 427 U.S., at 362, 96 S.Ct., at 2684 (plurality opinion). Because this appeal reaches this Court on a motion to dismiss, the record is barren of any demonstration by the State, that excluding minority views from the processes by which governmental policy is made is necessary to serve overriding governmental objectives. For the Court to sustain the exclusivity principle in the public sector in the absence of a carefully documented record is to ignore, rather than respect, "the importance of avoiding unnecessary decision of constitutional questions." Ante, at 236-237.
100
The same may be said of the asserted interests in eliminating the "free rider" effect and in preserving labor peace. It may be that the Board of Education is in a position to demonstrate that these interests are of paramount importance and that requiring public employees to pay certain union fees and dues as a condition of employment is necessary to serve those interests under an exclusive bargaining scheme. On the present record there is no assurance whatever that this is the case.16
101
Before today it had been well established that when state law intrudes upon protected speech, the State itself must shoulder the burden of proving that its action is justified by overriding state interests. See Elrod v. Burns, supra, 427 U.S. at 363, 96 S.Ct. at 2685; Healy v. James, 408 U.S. 169, 184, 92 S.Ct. 2338, 2347, 33 L.Ed.2d 266 (1972); Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 1341-42, 2 L.Ed.2d 1460 (1958). The Court, for the first time in a First Amendment case, simply reverses this principle. Under today's decision, a nonunion employee who would vindicate his First Amendment rights apparently must initiate a proceeding to prove that the union has allocated some portion of its budget to "ideological activities unrelated to collective bargaining." Ante, at 237-241. I would adhere to established First Amendment principles and require the State to come forward and demonstrate, as to each union expenditure for which it would exact support from minority employees, that the compelled contribution is necessary to serve overriding governmental objectives. This placement of the burden of litigation, not the Court's, gives appropriate protection to First Amendment rights without sacrificing ends of government that may be deemed important.
1
The certification was authorized by Mich.Comp.Laws § 423.211 (1970), which provides:
"Representatives designated or selected for purposes of collective bargaining by the majority of the public employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the public employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment, and shall be so recognized by the public employer: Provided, That any individual employee at any time may present grievances to his employer and have the grievances adjusted, without intervention of the bargaining representative, if the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect, provided that the bargaining representative has been given opportunity to be present at such adjustment."
2
Some of the plaintiffs were Union members and were paying agency-shop fees under protest; others had refused either to pay or to join the Union; still others had joined the Union and paid the fees without any apparent protest. The agency-shop clause itself prohibits the discharge of an employee engaged in litigation concerning his service charge obligation until his legal remedies have been exhausted, and no effort to enforce the clause against any of the plaintiffs has been made.
3
The nature of these activities and of the objections to them were not described in any further detail.
4
A grant of summary judgment under Mich.Gen.Ct.Rule 117.2(1) is equivalent to dismissal under Fed.Rule Civ.Proc. 12(b)(6) for failure to state a claim upon which relief can be granted. See Bielski v. Wolverine Ins. Co., 379 Mich. 280, 150 N.W.2d 788; Hiers v. Brownell, 376 Mich. 225, 136 N.W.2d 10; Handwerk v. United Steelworkers of America, 67 Mich.App. 747, 242 N.W.2d 514; Crowther v. Ross Chem. & Mfg. Co., 42 Mich.App. 426, 202 N.W.2d 577.
5
The only material difference was that Abood was not a class action.
6
The Abood complaint prayed for declaratory and injunctive relief against discharge of any teacher for failure to pay the service charge, and for such other relief as might be deemed appropriate.
7
That section provides in relevant part:
"(N)othing in this act or in any law of this state shall preclude a public employer from making an agreement with an exclusive bargaining representative as defined in section 11 to require as a condition of employment that all employees in the bargaining unit pay to the exclusive bargaining representative a service fee equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative . . . ."
8
The purpose of the remand was not expressly indicated. The trial court had entered judgment for the defendants upon the ground that the complaint failed to state a claim on which relief could be granted. The state appellate court's ruling that the 1973 amendment was not to be given retroactive effect did not undermine the validity of the trial court's judgment, for the Court of Appeals' determination that any possibly meritorious claims raised by the plaintiffs were prematurely asserted required the same result as that ordered by the trial court. The remand "as to the retroactive application given to (the 1973 amendment)" must, therefore, have been only for a ministerial purpose, such as the correction of language in the trial court's judgment for the defendants. In these circumstances, the judgment of the Court of Appeals is final for purposes of 28 U.S.C. § 1257(2). See, e. g., Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 382, 73 S.Ct. 749, 750, 97 L.Ed. 1094; Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 67-68, 68 S.Ct. 972, 976, 92 L.Ed. 1212; Richfield Oil Corp. v. State Bd. of Equalization, 329 U.S. 69, 72-74, 67 S.Ct. 156, 158-59, 91 L.Ed. 80.
9
At oral argument the suggestion was made that this case might be moot. The only agency-shop clause placed in issue by the complaints was contained in a collective-bargaining agreement that expired in 1971. That clause was unenforceable as a matter of state law after the decision in Smigel and the ruling of the State Court of Appeals in the present cases that the 1973 statute should not be given retroactive application.
But both sides acknowledged in their briefs submitted to the Michigan Court of Appeals that a successor collective-bargaining agreement effective in 1973 contained substantially the identical agency-shop provision. The Court of Appeals appears to have taken judicial notice of this agreement in rendering its decision, for otherwise its ruling that the 1973 amendment was not retroactive would have disposed of the case without the need to consider any constitutional questions. Since the state appellate court considered the 1973 agreement to be part of the record in making its ruling, we proceed upon the same premise.
The fact that the 1973 agreement may have expired since the state appellate court rendered its decision does not affect the continuing vitality of this controversy for Art. III purposes. Some of the plaintiffs in both Warczak and Abood either refused to pay the service charge or paid it under protest. See n. 2, supra. Their contention that they cannot constitutionally be compelled to contribute the service charge, or at least some portion of it, thus survives the expiration of the collective-bargaining agreement itself.
10
Under a union-shop agreement, an employee must become a member of the union within a specified period of time after hire, and must as a member pay whatever union dues and fees are uniformly required. Under both the National Labor Relations Act and the Railway Labor Act, "(i)t is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues." NLRB v. General Motors, 373 U.S. 734, 742, 83 S.Ct. 1453, 1459, 10 L.Ed.2d 670. See 29 U.S.C. § 158(a)(3); 45 U.S.C. § 152 Eleventh, quoted in n. 11, infra. Hence, although a union shop denies an employee the option of not formally becoming a union member, under federal law it is the "practical equivalent" of an agency shop, NLRB v. General Motors, supra, at 743, 83 S.Ct. at 1459. See also Lathrop v. Donohue, 367 U.S. 820, 828, 81 S.Ct. 1826, 1830, 6 L.Ed.2d 1191.
Hanson was concerned simply with the requirement of financial support for the union, and did not focus on the question whether the additional requirement of a union-shop arrangement that each employee formally join the union is constitutionally permissible. See NLRB v. General Motors, supra, 373 U.S. at 744, 83 S.Ct. at 1460. ("Such a difference between the union and agency shop may be of great importance in some contexts . . ."); cf. Storer v. Brown, 415 U.S. 724, 745-746, 94 S.Ct. 1274, 1286, 39 L.Ed.2d 714. As the agency shop before us does not impose that additional requirement, we have no occasion to address that question.
11
In relevant part, that section provides:
"Notwithstanding any other provisions of this chapter, or of any other statute or law of the United States, or Territory thereof, or of any State, any carrier or carriers as defined in this chapter and a labor organization or labor organizations duly designated and authorized to represent employees in accordance with the requirements of this chapter shall be permitted
"(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class: Provided, That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership."
12
Unlike § 14(b) of the National Labor Relations Act, 29 U.S.C. § 164(b), the Railway Labor Act pre-empts any attempt by a State to prohibit a union-shop agreement. Had it not been for that federal statute, the union-shop provision at issue in Hanson would have been invalidated under Nebraska law. The Hanson Court accordingly reasoned that government action was present: "(T)he federal statute is the source of the power and authority by which any private rights are lost or sacrificed. . . . The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates . . . ." 351 U.S., at 232, 76 S.Ct. at 718. See also id., at 232 n. 4 ("Once courts enforce the agreement the sanction of government is, of course, put behind them. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187; Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586").
13
In suggesting that Street "significantly undercut," and constituted a "rethinking" of, Hanson, post, at 247, the opinion concurring in the judgment loses sight of the fact that the record in Street, unlike that in Hanson, potentially presented constitutional questions arising from union expenditures for ideological purposes unrelated to collective bargaining.
14
29 U.S.C. § 151 et seq.
15
See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 564, 96 S.Ct. 1048, 1056, 47 L.Ed.2d 231:
"Because '(t)he collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit,' Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the controlling statutes have long been interpreted as imposing upon the bargaining agent a responsibility equal in scope to its authority, 'the responsibility and duty of fair representation.' Humphrey v. Moore, supra, 375 U.S. 335, at 342, 84 S.Ct. 363, 11 L.Ed.2d 370. The union as the statutory representative of the employees is 'subject always to complete good faith and honesty of purpose in the exercise of its discretion.' Ford Motor Co. v. Huffman, (345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048). Since Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), with respect to the railroad industry, and Ford Motor Co. v. Huffman, supra, and Syres v. Oil Workers, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1955), with respect to those industries reached by the National Labor Relations Act, the duty of fair representation has served as a 'bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.' Vaca v. Sipes, supra, 386 U.S. at 182, 87 S.Ct. 903."
16
See infra, at 233-235.
17
See, e. g., infra, at 229.
18
See n.1, supra.
19
See supra, at 214, and n. 7.
20
See Hanson, 351 U.S., at 233-234, 76 S.Ct., at 718-719 (footnote omitted):
"Powerful arguments have been made here that the long-run interests of labor would be better served by the development of democratic traditions in trade unionism without the coercive element of the union or the closed shop. Mr. Justice Brandeis, who had wide experience in labor-management relations prior to his appointment to the Court, wrote forcefully against the closed shop. He feared that the closed shop would swing the pendulum in the opposite extreme and substitute 'tyranny of the employee' for 'tyranny of the employer.' But the question is one of policy with which the judiciary has no concern, as Mr. Justice Brandeis would have been the first to concede. Congress, acting within its constitutional powers, has the final say on policy issues. If it acts unwisely, the electorate can make a change. The task of the judiciary ends once it appears that the legislative measure adopted is relevant or appropriate to the constitutional power which Congress exercises. The ingredients of industrial peace and stabilized labor-management relations are numerous and complex. They may well vary from age to age and from industry to industry. What would be needful one decade might be anathema the next. The decision rests with the policy makers, not with the judiciary."
See also Adair v. United States, 208 U.S. 161, 191-192, 28 S.Ct. 277, 287, 52 L.Ed. 436 (Holmes, J., dissenting):
"I quite agree that the question what and how much good labor unions do, is one on which intelligent people may differ, I think that laboring men sometimes attribute to them advantages, as many attribute to combinations of capital disadvantages, that really are due to economic conditions of a far wider and deeper kind but I could not pronounce it unwarranted if Congress should decide that to foster a strong union was for the best interest, not only of the men, but of the railroads and the country at large."
21
See, e. g., cases cited, infra, at 233-235.
22
See, at 218, and n. 12.
23
Nothing in our opinion embraces the "premise that public employers are under no greater constitutional constraints than their counterparts in the private sector," post, at 245 (POWELL, J., concurring in judgment), or indicates that private collective-bargaining agreements are, without more, subject to constitutional constraints, see post, at 252. We compare the agency-shop agreement in this case to those executed under the Railway Labor Act simply because the existence of governmental action in both contexts requires analysis of the free expression question.
It is somewhat startling, particularly in view of the concession that Hanson was premised on a finding that governmental action was present, see post, at 246 (POWELL, J., concurring in judgment), to read in Mr. Justice Powell's concurring opinion that Hanson and Street "provide little or no guidance for the constitutional issues presented in this case," post, at 254. Hanson nowhere suggested that the constitutional scrutiny of the union-shop agreement was watered down because the governmental action operated less directly than is true in a case such as the present one. Indeed, Mr. Justice Douglas, the author of Hanson, expressly repudiated that suggestion:
"Since neither Congress nor the state legislatures can abridge (First Amendment) rights, they cannot grant the power to private groups to abridge them. As I read the First Amendment, it forbids any abridgment by government whether directly or indirectly." Street, 367 U.S., at 777, 81 S.Ct., at 1804 (concurring opinion).
24
See, e. g., K. Hanslowe, The Emerging Law of Labor Relations in Public Employment (1967); H. Wellington & R. Winter, Jr., The Unions and the Cities (1971); Hildebrand, The Public Sector, in J. Dunlop and N. Chamberlain (eds.), Frontiers of Collective Bargaining 125-154 (1967); Rehmus, Constraints on Local Governments in Public Employee Bargaining, 67 Mich.L.Rev. 919 (1969); Shaw & Clark, The Practical Differences Between Public and Private Sector Collective Bargaining, 19 U.C.L.A.L.Rev. 867 (1972); Smith, State and Local Advisory Reports on Public Employment Labor Legislation: A Comparative Analysis, 67 Mich.L.Rev. 891 (1969); Summers, Public Employee Bargaining: A Political Perspective, 83 Yale L.J. 1156 (1974); Project, Collective Bargaining and Politics in Public Employment, 19 U.C.L.A.L.Rev. 887 (1972). The general description in the text of the differences between private- and public-sector collective bargaining is drawn from these sources.
25
See, e. g., Anderson, Strikes and Impasse Resolution in Public Employment, 67 Mich.L.Rev. 943 (1969); Burton & Krider, The Role and Consequences of Strikes by Public Employees, 79 Yale L.J. 418 (1970); Hildebrand, supra, n. 24; Kheel, Strikes and Public Employment, 67 Mich.L.Rev. 931 (1969); Wellington & Winter, The Limits of Collective Bargaining in Public Employment, 78 Yale L.J. 1107 (1969); Wellington & Winter, More on Strikes by Public Employees, 79 Yale L.J. 441 (1970).
26
See n. 20, supra.
27
Employees of state and local governments may be subject to a "little Hatch Act" designed to ensure that government operates effectively and fairly, that public confidence in government is not undermined, and that government employees do not become a powerful political machine controlled by incumbent officials. See, e. g., Broadrick v. Oklahoma, 413 U.S. 601, 603-604, 93 S.Ct. 2908, 2911-12, 37 L.Ed.2d 830; CSC v. Letter Carriers, 413 U.S. 548, 554-567, 93 S.Ct. 2880, 2885-91, 37 L.Ed.2d 796. Moreover, there may be limits on the extent to which an employee in a sensitive or policymaking position may freely criticize his superiors and the policies they espouse. See Pickering v. Board of Education, 391 U.S. 563, 570, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811 n.3.
28
See, e. g., Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (the First Amendment "secures the right to proselytize religious, political, and ideological causes") (emphasis supplied); Young v. American Mini Theatres, 427 U.S. 50, 70, 96 S.Ct. 2440, 49 L.Ed.2d 310 (plurality opinion) (protection of the First Amendment is fully applicable to the communication of social, political, or philosophical messages); id., at 87, 96 S.Ct. at 2460 (dissenting opinion) (even offensive speech that does not address "important topics" is not less worthy of constitutional protection); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d 212; Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284; quoting Winters v. New York, 333 U.S. 507, 528, 68 S.Ct. 665, 676, 92 L.Ed. 840 (Frankfurter, J., dissenting); Street v. New York, 394 U.S. 576, 593, 89 S.Ct. 1354, 1366, 22 L.Ed.2d 572, quoting West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 641-642, 63 S.Ct. 1178, 1186-87, 87 L.Ed. 1628 (" '(N) o official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion' ") (emphasis supplied); NAACP v. Button, 371 U.S. 415, 444-445, 83 S.Ct. 328, 343-44, 9 L.Ed.2d 405; Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 688, 79 S.Ct. 1362, 1365, 3 L.Ed.2d 1512 (suppression of a motion picture because it expresses the idea that under certain circumstances adultery may be proper behavior strikes at the very heart of First Amendment protection); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 1170, 2 L.Ed.2d 1488 ("it is immaterial whether the beliefs sought to be advanced . . . pertain to political, economic, religious, or cultural matters"); Roth v. United States, 354 U.S. 476, 488, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498; quoting Thornhill v. Alabama, 310 U.S. 88, 101-102, 60 S.Ct. 736, 703-44, 84 L.Ed. 1093.
29
In Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191, a companion case to Street, a lawyer sued for the refund of dues paid (under protest) to the integrated Wisconsin State Bar. The dues were required as a condition of practicing law in Wisconsin. The plaintiff contended that the requirement violated his constitutionally protected freedom of association because the dues were used by the State Bar to formulate and to support legislative proposals concerning the legal profession to which the plaintiff objected.
A plurality of four Justices found that the requirement was not on its face unconstitutional, relying on the analogy to Hanson. And the plurality ruled, as had the Court in Hanson, that the constitutional questions tendered were not ripe, for the Court was nowhere "clearly apprised as to the views of the appellant on any particular legislative issues on which the State Bar has taken a position, or as to the way in which and the degree to which funds compulsorily exacted from its members are used to support the organization's political activities." 367 U.S., at 845-846, 81 S.Ct. at 1839. The other five Members of the Court disagreed with the plurality and thought that the constitutional questions ought to be reached. Three Justices would have upheld the constitutionality of using compulsory dues to finance the State Bar's legislative activities even where opposed by dissenting members. See id., at 848, 81 S.Ct. at 1840. (Harlan, J., concurring in judgment); id., at 865, 81 S.Ct. at 1849. (Whittaker, J., concurring in result). The other two Justices would have held such activities to be unconstitutional. See ibid. (Black, J., dissenting); id., at 877, 81 S.Ct. at 1855 (Douglas, J., dissenting).
The only proposition about which a majority of the Court in Lathrop agreed was that the constitutional issues should be reached. However, due to the disparate views of those five Justices on the merits and the failure of the other four Members of the Court to discuss the constitutional questions, Lathrop does not provide a clear holding to guide us in adjudicating the constitutional questions here presented.
30
See also Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (state statute which required every teacher to file annually an affidavit listing every organization to which he had belonged or regularly contributed is unconstitutional because of its unlimited and indiscriminate interference with freedom of association).
31
This view has long been held. James Madison, the First Amendment's author, wrote in defense of religious liberty: "Who does not see . . . (t)hat the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?" 2 The Writings of James Madison 186 (Hunt ed. 1901). Thomas Jefferson agreed that " 'to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.' " I. Brant, James Madison: The Nationalist 354 (1948).
32
To the extent that this activity involves support of political candidates, it must, of course, be conducted consistently with any applicable (and constitutional) system of election campaign regulation. See generally Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659; Developments in the Law Election, 88 Harv.L.Rev. 1111, 1237-1271 (1975).
33
The appellants' complaints also alleged that the Union carries on various "social activities" which are not open to nonmembers. It is unclear to what extent such activities fall outside the Union's duties as exclusive representative or involve constitutionally protected rights of association. Without greater specificity in the description of such activities and the benefit of adversary argument, we leave those questions in the first instance to the Michigan courts.
34
A further reason to avoid anticipating difficult constitutional questions in this case is the possibility that the dispute may be settled by resort to a newly adopted internal Union remedy. See infra, at 240, and n. 41.
35
It is plainly not an adequate remedy to limit the use of the actual dollars collected from dissenting employees to collective-bargaining purposes:
"(Such a limitation) is of bookkeeping significance only rather than a matter of real substance. It must be remembered that the service fee is admittedly the exact equal of membership initiation fees and monthly dues . . . and that . . . dues collected from members may be used for a 'variety of purposes, in addition to meeting the union's costs of collective bargaining.' Unions 'rather typically' use their membership dues 'to do those things which the members authorize the union to do in their interest and on their behalf.' If the union's total budget is divided between collective bargaining and institutional expenses and if nonmember payments, equal to those of a member, go entirely for collective bargaining costs, the nonmember will pay more of these expenses than his pro rata share. The member will pay less and to that extent a portion of his fees and dues is available to pay institutional expenses. The union's budget is balanced. By paying a larger share of collective bargaining costs the nonmember subsidizes the union's institutional activities." Retail Clerks v. Schermerhorn, 373 U.S. 746, 753-754, 83 S.Ct. 1461, 1465, 10 L.Ed.2d 678.
36
29 U.S.C. §§ 101-115.
37
See supra, at 234, and n. 30.
38
In proposing a restitution remedy, the Street opinion made clear that "(t)here should be no necessity, however, for the employee to trace his money up to and including its expenditure; if the money goes into general funds and no separate accounts of receipts and expenditures of the funds of individual employees are maintained, the portion of his money the employee would be entitled to recover would be in the same proportion that the expenditures for political purposes which he had advised the union he disapproved bore to the total union budget." 367 U.S., at 775, 81 S.Ct. at 1803.
39
Allen can be viewed as a relaxation of the conditions established in Street governing eligibility for relief. See Allen, 373 U.S., at 129-131, 83 S.Ct. at 1167-1168 (Harlan, J., concurring in part and dissenting in part). Street seemed to imply that an employee would be required to identify the particular causes which he opposed. 367 U.S., at 774-775, 81 S.Ct., at 1802-03. Any such implication was clearly disapproved in Allen, and, as explained today, see infra, at 241, there are strong reasons for preferring the approach of Allen.
40
The Court in Allen went on to elaborate:
"(S)ince the unions possess the facts and records from which the proportion of political to total union expenditures can reasonably be calculated, basic considerations of fairness compel that they, not the individual employees, bear the burden of proving such proportion. Absolute precision in the calculation of such proportion is not, of course, to be expected or required; we are mindful of the difficult accounting problems that may arise. And no decree would be proper which appeared likely to infringe the unions' right to expend uniform exactions under the union-shop agreement in support of activities germane to collective bargaining and, as well, to expend nondissenters' such exactions in support of political activities." 373 U.S., at 122, 83 S.Ct., at 1163.
41
Under the procedure adopted by the Union, as explained in the appellees' brief, a dissenting employee may protest at the beginning of each school year the expenditure of any part of his agency-shop fee for " 'activities or causes of a political nature or involving controversial issues of public importance only incidentally related to wages, hours, and conditions of employment.' " The employee is then entitled to a pro rata refund of his service charge in accordance with the calculation of the portion of total Union expenses for the specified purposes. The calculation is made in the first instance by the Union, but is subject to review by an impartial board.
42
In Buckley v. Valeo, the Court recognized that compelled disclosure of political campaign contributions and expenditures "can seriously infringe on privacy of association and belief guaranteed by the First Amendment." 424 U.S., at 64, 96 S.Ct. at 656. See, e. g., Gibson v. Florida Legislative Comm., 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929; Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. The Court noted that "the invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations," and that therefore our past decisions have extended constitutional protection to contributors and members interchangeably. 424 U.S., at 66, 96 S.Ct., at 657, citing California Bankers Assn. v. Shultz, 416 U.S. 21, 78-79, 94 S.Ct. 1494, 1525-26, 39 L.Ed.2d 812 (POWELL, J., concurring); Bates v. Little Rock, supra, 361 U.S., at 518, 80 S.Ct., at 414; and United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770.
Disclosure of the specific causes to which an individual employee is opposed (which necessarily discloses, by negative implication, those causes the employee does support) may subject him to "economic reprisal, . . . threat of physical coercion, and other manifestations of public hostility," and might dissuade him from exercising the right to withhold support "because of fear of exposure of (his) beliefs . . . and of the consequences of this exposure." NAACP v. Alabama ex rel. Patterson, supra, 357 U.S., at 462-463, 78 S.Ct., at 1172.
43
Although the appellants did not specifically pray for either of the remedies described in Street and Allen, the complaints in both Abood and Warczak included a general prayer for "such further and other relief as may be necessary, or may to the Court seem just and equitable."
The Warczak complaint was styled as a class action, but the trial court dismissed the complaint without addressing the propriety of class relief under Michigan law. We therefore have no occasion to address the question whether an individual employee who is not a named plaintiff but merely a member of the plaintiff class is, without more, entitled to relief under Street and Allen as a matter of federal law.
44
See supra at 237-240, and nn. 38, 40.
45
We express no view as to the constitutional sufficiency of the internal remedy described by the appellees. If the appellants initially resort to that remedy and ultimately conclude that it is constitutionally deficient in some respect, they would of course be entitled to judicial consideration of the adequacy of the remedy.
*
The case is before us on the equivalent of a motion to dismiss. Ante, at 213-214, n. 4. Our knowledge of the facts is limited to a bald assertion that the Union engages " 'in a number and variety of activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve . . . .' " Ante, at 213, and n. 3. What if anything, will be proved at trial is a matter for conjecture.
1
The Court compared the union shop to the organized bar: "On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar." 351 U.S., at 238, 76 S.Ct., at 721. Mr. Justice Douglas, author of the Court's opinion in Hanson, later remarked that "on reflection the analogy fails." Lathrop v. Donohue, 367 U.S. 820, 879, 81 S.Ct. 1826, 1856, 6 L.Ed.2d 1191 (1961) (dissenting opinion).
2
The Court today simply reads the separate opinion of Mr. Justice Douglas in Street as expressing the holding of the Court in Hanson. Ante, at 227 n. 23; see ante, at 222-223. While it may be possible to read Hanson this way, see n. 1, supra, it is certainly unnecessary to do so in light of the issues actually presented and resolved in that case. The Court offers no explanation of why Justices Frankfurter and Harlan, who believed that "the scope and force of what Congress has done must be heeded," 367 U.S., at 807, 81 S.Ct., at 1819, would acquiesce in the finding of governmental action in Hanson if that finding represented a definitive ruling that governmental authorization of a private union-shop agreement subjects the agreement itself to the full constraints of the First Amendment.
3
Whether because no First Amendment interest were implicated, or because Congress had done nothing affirmatively to infringe such interest, or because any infringement of First Amendment interests was necessary to serve overriding governmental purposes, the Court was unanimous that the Railway Labor Act was constitutional insofar as it protected private agreements that would compel payment of sufficient fees to cover collective-bargaining costs. 367 U.S., at 771, 81 S.Ct., at 1801; 778, 81 S.Ct., at 1805 (Douglas, J., concurring); 779, 81 S.Ct., at 1805 (opinion of Whittaker, J.); 791, 81 S.Ct. at 1810 (Black, J., dissenting); 804, 81 S.Ct., at 1817 (Frankfurter, J., dissenting).
4
The Court explicitly reserved judgment on "the matter of expenditures for activities in the area between the costs which led directly to the complaint as to 'free riders,' and the expenditures to support union political activities." Id., at 769-770, 81 S.Ct., at 1800.
5
This is not to say, of course, that governmental authorization of private action is free from constitutional scrutiny under the Bill of Rights and the Fourteenth Amendment. The historical context of a facially permissive enactment may demonstrate that its purpose and effect are to bring about a result that the Constitution forbids the legislature to achieve by direct command. It is well established, for example, that a State cannot promote racial discrimination by laws designed to foster and encourage discriminatory practices in the private sector. See Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176-177, 92 S.Ct. 1965, 1973, 32 L.Ed.2d 627 (1972). And the Court in Street would not have read the Railway Labor Act as restrictively as it did, had it not been concerned that a broader reading might result in the indirect curtailment of First Amendment rights by Congress. But I am not aware that the Court has ever before held, as it apparently has today, that the same constitutional constraints invariably apply when the government fosters or encourages a result in the private sector by permissive legislation as when it commands that result by the full force of law.
6
See Note, Individual Rights in Industrial Self-Government A "State Action" Analysis, 63 Nw.U.L.Rev. 4 (1968); cf. Blumrosen, Group Interests in Labor Law, 13 Rutgers L.Rev. 432, 482-483 (1959).
7
If collective-bargaining agreements were subjected to the same constitutional constraints as federal rules and regulations, it would be difficult to find any stopping place in the constitutionalization of regulated private conduct. "Most private activity is infused with the governmental in much the way that the union shop is. . . . Enacted and decisional law everywhere conditions and shapes the nature of private arrangements in our society. This is true with the commercial contract regulated as it is by comprehensive uniform statutes no less than with the collective bargaining agreement . . . ." H. Wellington, Labor and the Legal Process 244-245 (1968).
8
Cf. Summers, Public Sector Bargaining: Problems of Governmental Decisionmaking, 44 U.Cin.L.Rev. 669, 670 (1975):
"The uniqueness of public employment is not in the employees nor in the work performed; the uniqueness is in the special character of the employer. The employer is government; the ones who act on behalf of the employer are public officials; and the ones to whom those officials are answerable are citizens and voters. We have developed a whole structure of constitutional and statutory principles, and a whole culture of political practices and attitudes as to how government is to be conducted, what powers public officials are to exercise, and how they are to be made answerable for their actions. Collective bargaining by public employers must fit within the governmental structure and must function consistently with our governmental processes; the problems of the public employer accommodating is collective bargaining function to government structures and processes is what makes public sector bargaining unique."
9
The Court's reliance on Hanson and Street is ambivalent, to say the least. Street construed § 2 Eleventh of the Railway Labor Act "to deny the unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes." 367 U.S., at 768-769, 81 S.Ct., at 1800. The opinion distinguishes not only between those union activities which are related to collective bargaining and those which are not, but "between the use of union funds for political purposes and their expenditure for nonpolitical purposes." Id., at 769 n. 17, 81 S.Ct. at 1800. Yet the Court today repudiates the latter distinction, holding that nothing turns on whether union activity may be characterized as political. Ante, at 231-232. If it is true, as the Court believes, that Hanson and Street declare the limits of constitutional protection from a governmental union shop, ante, at 222-223, the Court's abandonment of the political-nonpolitical distinction drawn by those cases can only be explained by a desire to avoid its full implications in the public sector, where the subjects of bargaining are inherently political. See infra, at 256-258.
10
The leadership of the American Federation of Teachers, with which the local union involved in this case is affiliated, has apparently taken the position that collective bargaining should extend to every aspect of educational policy within the purview of the school board. See J. Weitzman, The Scope of Bargaining in Public Employment 85-88 (1975).
11
Michigan law requires public agencies to bargain with authorized unions on all "conditions of employment," Mich.Comp.Laws § 423.211 (1970), but does not limit the permissible scope of public-sector bargaining to such conditions.
12
See Summers, supra, n. 8, at 672:
"The major decisions made in bargaining with public employees are inescapably political decisions. . . . Directly at issue are political questions of the size and allocation of the budget, the tax rates, the level of public services, and the long term obligations of the government. These decisions . . . are to be made by the political branches of government by elected officials who are politically responsible to the voters. . . . "
See also Hortonville School Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 495, 96 S.Ct. 2308, 2315, 49 L.Ed.2d 1 (1976); Wellington & Winter, Structuring Collective Bargaining in Public Employment, 79 Yale L.J. 805, 858-860 (1970).
13
Compelled support of a private association is fundamentally different from compelled support of government. Clearly, a local school board does not need to demonstrate a compelling state interest every time it spends a taxpayer's money in ways the taxpayer finds abhorrent. But the reason for permitting the government to compel the payment of taxes and to spend money on controversial projects is that the government is representative of the people. The same cannot be said of a union, which is representative only of one segment of the population, with certain common interests. The withholding of financial support is fully protected as speech in this context.
14
The Court's failure to apply the established First Amendment standards articulated in Elrod v. Burns and Buckley v. Valeo is difficult to explain in light of its concession that disassociation with a union's activities is entitled to full First Amendment protection regardless of whether those activities may be characterized as political. Ante, at 231-232, and n. 28. One may only surmise that those in the majority today who joined the plurality opinion in Elrod hold the unarticulated belief that compelled support of a public-sector union makes better public policy than compelled support of a political party. I am at a loss to understand why the State's decision to adopt the agency shop in the public sector should be worthy of greater deference, when challenged on First Amendment grounds, than its decision to adhere to the tradition of political patronage. See Elrod, 427 U.S., at 376-380, 382-387, 96 S.Ct., at 2691-2693, 94-96 (Powell, J., dissenting).
15
By stressing the Union's duty of fair representation, ante, at 221-222, the Court may be suggesting that the State has provided an adequate means for minority viewpoints to be heard within the Union. But even if Michigan law could read to impose a broad obligation on the union to listen to and represent the viewpoints of all employees on such issues as curriculum reform, imposition of such an obligation on the Union could not relieve the school board of its responsibilities at least, it could not do so unless the Union were declared to be a public agency to which the State had delegated some part of the school board's power. Yet such a delegation of state power, covering an unlimited range of the school board's responsibility to set school policy, see nn. 10 and 11, supra, would itself raise grave constitutional issues. If power to determine school policy were shifted in part from officials elected by the population of the school district to officials elected by the school board's employees, the voters of the district could complain with force and reason that their voting power and influence on the decisionmaking process had been unconstitutionally diluted. See Kramer v. Union School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Hadley v. Junior College Dist., 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970).
16
Unions in the public sector may be expected to spend money in a broad variety of ways, some of which are more closely related to collective bargaining than others, and some of which are more likely to stimulate "ideological" opposition than others. With respect to many of these expenditures, arriving at the appropriate reconciliation of the employees' First Amendment interests with the asserted governmental interests will be difficult.
I should think that on some narrowly defined economic issues teachers' salaries and pension benefits, for example the case for requiring the teachers to speak through a single representative would be quite strong, while the concomitant limitation of First Amendment rights would be relatively insignificant. On such issues the case for requiring all teachers to contribute to the clearly identified costs of collective bargaining also would be strong, while the interest of the minority teacher, who is benefited directly, in withholding support would be comparatively weak. On other issues including such questions as how best to educate the young the strong First Amendment interests of dissenting employees might be expected to prevail.
The same may be said of union activities other than bargaining. The processing of individual grievances may be an important union service for which a fee could be exacted with minimal intrusion on First Amendment interests. But other union actions such as a strike against a public agency may be so controversial and of such general public concern that compelled financial support by all employees should not be permitted under the Constitution.
| 67
|
431 U.S. 265
97 S.Ct. 1740
52 L.Ed.2d 304
James E. DOUGLAS, Jr., Commissioner, Virginia Marine Resources Commission, Appellant,v.SEACOAST PRODUCTS, INC., et al.
No. 75-1255.
Argued Jan. 17, 1977.
Decided May 23, 1977.
Syllabus
The federal enrollment and licensing laws, under which vessels engaged in domestic or coastwise trade or used for fishing are "enrolled" for the purpose of evidencing their national character and to enable them to obtain licenses regulating the use to which the vessels may be put held to pre-empt Virginia statutes that in effect prohibit nonresidents of Virginia from catching menhaden in the Virginia portion of Chesapeake Bay and that bar noncitizens (regardless of where they reside) from obtaining commercial fishing licenses for any kind of fish from Virginia. Hence, under the Supremacy Clause, the Virginia laws cannot prevent appellees, whose fishing vessels, though foreign owned, have been federally licensed, from fishing for menhaden in Virginia's waters. Pp. 271-287.
(a) Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824), decided three decades after the federal enrollment and licensing laws were enacted (and which have been re-enacted without substantial change), established the invalidity of discriminatory state regulation of shipping as applied to vessels federally licensed to engage in the coasting trade, though subsequent decisions have permitted States to impose upon federal licensees reasonable nondiscriminatory conservation and environmental protection measures otherwise within the state police power. Pp. 274-279.
(b) The license does not merely establish the nationality of the vessel (which is performed by the enrollment) but "implies, unequivocally, an authority to licensed vessels to carry on" the activity for which they are licensed. Gibbons, supra, at 212. Pp. 280-282.
(c) The Virginia statutes, by prohibiting federally licensed vessels owned by nonresidents of Virginia from fishing in Chesapeake Bay and by not allowing such ships owned by noncitizens to catch fish anywhere in the Commonwealth, deny licensees their federally granted right to engage in fishing activities on the same terms as state residents. P. 283.
(d) The broad language of the Submerged Lands Act did not impliedly repeal the federal licensing laws. P. 283-284.
432 F.Supp. 1, affirmed.
James E. Moore, Norfolk, Va., for appellant.
John J. Loflin, New York City, for appellees.
[Amicus Curiae Information from page 266 intentionally omitted]
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The issue in this case is the validity of two Virginia statutes that limit the right of nonresidents and aliens to catch fish in the territorial waters of the Commonwealth.
2
* Persons or corporations wishing to fish commercially in Virginia must obtain licenses. Section 28.1-81.1 of the Virginia Code (§ 81.1) (Supp. 1976),1 enacted in 1975, limits the issuance of commercial fishing licenses to United States citizens. Under this law, participants in any licensed partnership, firm, or association must be citizens. A fishing business organized in corporate form may be licensed only if it is chartered in this country; American citizens own and control at least 75% of its stock; and its president, board chairman, and controlling board majority are citizens.
3
Section 28.1-60 of the Virginia Code (§ 60) (1976 Supp.)2 governs licensing of nonresidents of Virginia to fish for menhaden, an inedible but commercially valuable species of fin fish.3 Section 60 allows nonresidents who meet the citizenship requirements of § 81.1 to obtain licenses to fish for menhaden in the three-mile-wide belt of Virginia's territorial sea off the Commonwealth's eastern coastline. At the same time, however, § 60 prohibits nonresidents from catching menhaden in the Virginia portion of Chesapeake Bay.
4
Appellee Seacoast Products, Inc., is one of three companies that dominate the menhaden industry. The other two firms, unlike Seacoast, have fish-processing plants in Virginia and are owned by American citizens. Hence, they are not affected by either of the restrictions challenged in this case. Seacoast was founded in New Jersey in 1911 and maintains its principal offices in that State; it is incorporated in Delaware and qualified to do business in Virginia. The other appellees are subsidiaries of Seacoast; they are incorporated and maintain plants and offices in States other than Virginia. In 1973, the family of Seacoast's founder sold the business to Hanson Trust, Ltd., a United Kingdom company almost entirely owned by alien stockholders. Seacoast continued its operations unchanged after the sale. All of its officers, directors, boat captains and crews are American citizens, as are over 95% of its plant employees.
5
At the time of its sale, Seacoast's fishing vessels were enrolled and licensed American-flag ships. See infra, at 272-274. Under 46 U.S.C. §§ 808, 835, the transfer of these vessels to a foreign-controlled corporation required the approval of the Department of Commerce. This was granted unconditionally over the opposition of Seacoast's competitors after a full public hearing that considered the effect of the transfer on fish conservation and management, on American workers and consumers, and on competition and other social and economic concerns. See 38 Fed.Reg. 29239-29240 (1973); 39 Fed.Reg. 7819, 33812-33813 (1974); App. 29-32. Following this approval, appellees' fishing vessels were re-enrolled and relicensed pursuant to 46 U.S.C. §§ 251-252, 263. They remain subject to all United States laws governing maritime commerce.
6
In past decades, although not recently, Seacoast had operated processing plants in Virginia and was thereby entitled to fish in Chesapeake Bay as a resident. Tr. of Oral Arg. 28-29, 34. More recently, Seacoast obtained nonresident menhaden licenses as restricted by § 60 to waters outside Chesapeake Bay. In 1975 however, § 81.1 was passed by the Virginia Legislature, c. 338, 1975 Va. Acts, and appellant James E. Douglas, Jr., the Commissioner of Marine Resources for Virginia, denied appellees' license applications on the basis of the new law. Seacoast and its subsidiaries were thereby completely excluded from the Virginia menhaden fishery.
7
(1, 2) Appellees accordingly filed a complaint in the District Court for the Eastern District of Virginia, seeking to have §§ 60 and 81.1 declared unconstitutional and their enforcement enjoined. A three-judge court was convened and it struck down both statutes. It held that the citizenship requirement of § 81.1 was pre-empted by the Bartlett Act, 16 U.S.C. § 1081 et seq., and that the residency restriction of § 60 violated the Equal Protection Clause of the Fourteenth Amendment. We noted probable jurisdiction of the Commissioner's appeal, 425 U.S. 949, 96 S.Ct. 1723, 48 L.Ed.2d 193 (1976), and we affirm.4
II
8
Seacoast advances a number of theories to support affirmance of the judgment below. See Fusari v. Steinberg, 419 U.S. 379, 387 n. 13, 95 S.Ct. 533, 539 n. 13, 42 L.Ed.2d 521 (1975); Dandridge v. Williams, 397 U.S. 471, 475, n. 6, 90 S.Ct. 1153, 1156, n. 6, 25 L.Ed.2d 491 (1970). Among these is the claim that the Virginia statutes are pre-empted by federal enrollment and licensing laws for fishing vessels.5 The United States has filed a brief as amicus curiae supporting this contention. Although the claim is basically constitutional in nature, deriving its force from the operation of the Supremacy Clause, Art. VI, cl. 2, it is treated as "statutory" for purposes of our practice of deciding statutory claims first to avoid unnecessary constitutional adjudications. See Hagans v. Lavine, 415 U.S. 528, 549, 94 S.Ct. 1372, 1385, 39 L.Ed.2d 577 (1974).6 Since we decide the case on this ground, we do not reach the constitutional issues raised by the parties.
9
The well-known principles of pre-emption have been rehearsed only recently in our decisions. See, e. g. Jones v. Rath Packing Co., 430 U.S. 519, at 525-526, 97 S.Ct. 1305, at 1309, 51 L.Ed.2d 604 (1977); De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). No purpose would be served by repeating them here. It is enough to note that we deal in this case with federal legislation arguably superseding state law in a "field which . . . has been traditionally occupied by the States." Jones v. Rath Packing Co., supra, at 525, 97 S.Ct., at 1309. Preemption accordingly will be found only if " '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)." Ibid. We turn our focus, then, to the congressional intent embodied in the enrollment and licensing laws.
A.
10
The basic form for the comprehensive federal regulation of trading and fishing vessels was established in the earliest days of the Nation and has changed little since. Ships engaged in trade with foreign lands are "registered," a documentation procedure set up by the Second Congress in the Act of Dec. 31, 1792, 1 Stat. 287,7 and now codified in 46 U.S.C., c. 2. "The purpose of a register is to declare the nationality of a vessel . . . and to enable her to assert that nationality wherever found." The Mohawk, 3 Wall. 566, 571, 18 L.Ed. 67 (1866); Anderson v. Pacific Coast S. S. Co., 225 U.S. 187, 199, 32 S.Ct. 626, 630, 56 L.Ed. 1047 (1912). Vessels engaged in domestic or coastwise trade or used for fishing are "enrolled" under procedures established by the Enrollment and Licensing Act of Feb. 18, 1793, 1 Stat. 305, codified in 46 U.S.C., c. 12. "The purpose of an enrollment is to evidence the national character of a vessel . . . and to enable such vessel to procure a . . . license." The Mohawk, supra; Anderson v. Pacific Coast S. S. Co., supra.
11
A "license," in turn, regulates the use to which a vessel may be put and is intended to prevent fraud on the revenue of the United States. See 46 U.S.C. §§ 262, 263, 319, 325; 46 CFR § 67.01-13 (1976). The form of a license is statutorily mandated: "license is hereby granted for the . . . (vessel) to be employed in carrying on the (. . . 'coasting trade', 'whale fishery', 'mackerel fishery', or 'cod fishery',8 as the case may be), for one year from the date hereof, and no longer." 46 U.S.C. § 263. The law also provides that properly enrolled and licensed vessels9 "and no others, shall be deemed vessels of the United States entitled to the privileges of vessels employed in the coasting trade or fisheries." § 251, Appellees' vessels were granted licenses for the "mackerel fishery"10 after their transfer was approved by the Department of Commerce.
12
The requirements for enrollment and registration are the same. 46 U.S.C. § 252; The Mohawk, supra, at 571-572. Insofar as pertinent here, enrolled and registered vessels must meet identification, measurement, and safety standards, generally must be built in the United States, and must be owned by citizens. An exception to the latter rule permits a corporation having alien stockholders to register or enroll ships if it is organized and chartered under the laws of the United States or of any State, if its president or chief executive officer and the chairman of its board of directors are American citizens, and if no more of its directors than a minority of the number necessary to constitute a quorum are noncitizens. 46 U.S.C. § 11; 46 CFR § 67.03-5(a) (1976). The Shipping Act, 1916, further limits foreign ownership of American vessels by requiring the Secretary of Commerce to approve any transfer of an American-owned vessel to noncitizens. 46 U.S.C. § 808.11
B
13
Deciphering the intent of Congress is often a difficult task, and to do so with a law the vintage of the Enrollment and Licensing Act verges on the impossible. There is virtually no surviving legislative history for the act.12 What we do have, however, is the historic decision of Mr. Chief Justice John Marshall in Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824), rendered only three decades after passage of the Act. Gibbons invalidated a discriminatory state regulation of shipping as applied to vessels federally licensed to engage in the coasting trade. Although its historic importance lies in its general discussion of the commerce power, Gibbons also provides substantial illumination on the narrower question of the intended meaning of the Licensing Act.
14
The case challenged a New York law intended to encourage development of steamboats by granting Robert Fulton and Robert Livingston the exclusive right to operate steam-powered vessels in all of the State's territorial waters. The right to navigate steamboats between Elizabethtown Point, N.J., and New York City was, by assignment from Fulton and Livingston, granted to Aaron Ogden. Thomas Gibbons began operating two passenger ferries in violation of Ogden's submonopoly. Gibbons' steamboats had been enrolled and granted "license . . . to be employed in carrying on the coasting trade" under the Enrollment and Licensing Act, Id., at 203.
15
Ogden nevertheless obtained an injunction from the New York courts enforcing the monopoly by restraining Gibbons from running his ferries in New York waters. Chancellor James Kent rejected Gibbons' pre-emption claim based upon his federal licenses. Kent found that the sole purpose of the license was to "giv(e) to the vessel an American character," i. e., to establish its nationality as an American-flag ship. This would have reduced various duties and taxes assessed under federal law, but in Kent's view, it did not oust the power of the State to regulate the use of chattels within its borders. 4 Johns. Ch. 150, 156-159 (1819). The highest state court affirmed, ruling that "the only effect" of the license was "to determine (the vessel's) national character, and the rate of duties which she is to pay." 17 Johns. 488, 509 (1820).
16
On appeal to this Court, Mr. Chief Justice Marshall held that the rights granted to Gibbons by federal law superseded the conflicting state-created rights asserted by Ogden. Marshall first considered the power of Congress under the Commerce Clause. He concluded that "(c)ommerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior," 9 Wheat., at 194, and that "(t)he power of Congress . . ., whatever it may be, must be exercised within the territorial jurisdiction of the several States." Id., at 196. The Court next defined the nature of the commerce power: "the power to regulate; that is, to prescribe the rule by which commerce is to be governed." Ibid. Ogden's claim that the States may exercise concurrent power over commerce, or even exercise their police powers, where that exercise conflicts with express federal law was rejected. Id., at 200-210.
17
The Court then turned to the question whether "the laws of New-York" did "come into collision with an act of Congress" so that "the acts of New-York must yield to the law of Congress." Id., at 210. Mr. Chief Justice Marshall found the conflict unquestionable: "To the Court it seems very clear, that the whole act on the subject of the coasting trade, according to those principles which govern the construction of statutes, implies, unequivocally, an authority to licensed vessels to carry on the coasting trade." Id., at 212. The license granted to Gibbons under the Act "must be understood to be what it purports to be, a legislative authority to (Gibbons') steamboat . . . 'to be employed in carrying on the coasting trade, for one year from this date.' " Id., at 214. The Court rejected Ogden's argument and the holding of the New York courts that the license "gives no right to trade; and that its sole purpose is to confer the American character." Ibid. Finally, the Court decided that the statutory phrase "coasting trade" encompassed the carriage of passengers for hire as well as the transport of goods. Id., at 215-219.
18
Although Gibbons is written in broad language which might suggest that the sweep of the Enrollment and Licensing Act ousts all state regulatory power over federally licensed vessels, neither the facts before the Court nor later interpretations extended that far. Gibbons did not involve an absolute ban on steamboats in New York waters. Rather, the monopoly law allowed some steam vessels to ply their trade while excluding others that were federally licensed. The case struck down this discriminatory treatment. Subsequent decisions spelled out the negative implication of Gibbons : that States may impose upon federal licensees reasonable, nondiscriminatory conservation and environmental protection measures otherwise within their police power.
19
For example, in Smith v. Maryland, 18 How. 71, 15 L.Ed. 269 (1855), the Court upheld a conservation law which limited the fishing implements that could be used by a federally licensed vessel to take oysters from state waters. The Court held that an "enrolment and license confer no immunity from the operation of valid laws of a State," Id., at 74, and that the law was valid because the State "may forbid all such acts as would render the public right (of fishery) less valuable, or destroy it altogether," id., at 75. At the same time, the Court explicitly reserved the question of the validity of a statute discriminating against nonresidents. Ibid. To the same effect is the holding in Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159 (1891). There, state law prohibited the use by any person of certain types of fishing tackle in specified areas. Though Manchester was a Rhode Island resident basing a claim on his federal fisheries license, the Court held that the statute
20
"was evidently passed for the preservation of the fish, and makes no discrimination in favor of citizens of Massachusetts and against citizens of other States. . . . (T)he statute may well be considered as an impartial and reasonable regulation . . . and the subject is one which a State may well be permitted to regulate within its territory, in the absence of any regulation by the United States. The preservation of fish . . . is for the common benefit; and we are of opinion that the statute is not repugnant to the Constitution and the laws of the United States." Id., at 265, 11 S.Ct., at 565.
21
More recently, the same principle was applied in Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960), where we held that the city's Smoke Abatement Code was properly applicable to licensed vessels. Relying on earlier cases, we noted that "(t)he mere possession of a federal license . . . does not immunize a ship from the operation of the normal incidents of local police power." Id., at 447, 80 S.Ct., at 818. As an (e) venhanded local regulation to effectuate a legitimate local public interest," id., at 443, 80 S.Ct., at 815, the ordinance was valid.
22
(3) Although it is true that the Court's view in Gibbons of the intent of the Second Congress in passing the Enrollment and Licensing Act is considered incorrect by commentators,13 its provisions have been repeatedly re-enacted in substantially the same form.14 We can safely assume that Congress was aware of the holding, as well as the criticism,15 of a case so renowned as Gibbons. We have no doubt that Congress has ratified the statutory interpretation of Gibbons and its progeny. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 2370, n. 8, 45 L.Ed.2d 280 (1975); Snyder v. Harris, 394 U.S. 332, 339, 89 S.Ct. 1053, 1058, 22 L.Ed.2d 319 (1969); Francis v. Southern Pacific Co., 333 U.S. 445, 449-450, 68 S.Ct. 611, 613, 92 L.Ed. 798 (1948). We consider, then, its impact on the Virginia statutes challenged in this case.
C
23
The federal licenses granted to Seacoast are, as noted above, identical in pertinent part to Gibbons' licenses except that they cover the "mackerel fishery" rather than the "coasting trade." Appellant contends that because of the difference this case is distinguishable from Gibbons. He argues that Gibbons upheld only the right of the federal licensee, as an American-flag vessel, to navigate freely in state territorial waters. He urges that Congress could not have intended to grant an additional right to take fish from the waters of an unconsenting State. Appellant points out that the challenged statutes in no way interfere with the navigation of Seacoast's fishing boats. They are free to cross the State's waters in search of fish in jurisdictions where they may lawfully catch them, and they may transport fish through the State's waters with equal impunity.
24
Appellant's reading of Gibbons is too narrow. Gibbons emphatically rejects the argument that the license merely establishes the nationality of the vessel. That function is performed by the enrollment. 9 Wheat., at 214. Rather, the license "implies, unequivocally, an authority to licensed vessels to carry on" the activity for which they are licensed. Id., at 212. In Gibbons, the "authority. . . to carry on" the licensed activity included not only the right to navigate in, or to travel across, state waters, but also the right to land passengers in New York and thereby provide an economically valuable service. The right to perform that additional act of landing cargo in the State which gave the license its real value was part of the grant of the right to engage in the "coasting trade." See Harman v. Chicago, 147 U.S. 396, 405, 13 S.Ct. 306, 309, 37 L.Ed. 216 (1893).
25
The same analysis applies to a license to engage in the mackerel fishery. Concededly, it implies a grant of the right to navigate in state waters. But, like the trading license, it must give something more. It must grant "authority . . . to carry on" the "mackerel fishery." And just as Gibbons and its progeny found a grant of the right to trade in a State without discrimination, we conclude that appellees have been granted the right to fish in Virginia waters on the same terms as Virginia residents.
26
Moreover, 46 U.S.C. § 251 states that properly documented vessels "and no others" are "entitled to the privileges of vessels employed in the coasting trade or fisheries." Referring to this section, Gibbons held: "These privileges . . . cannot be enjoyed, unless the trade may be prosecuted. The grant of the privilege . . . convey(s) the right (to carry on the licensed activity) to which the privilege is attached." 9 Wheat., at 213. Thus, under § 251 federal licensees are "entitled" to the same "privileges" of fishery access as a State affords to its residents or citizens.
27
(4-6) Finally, our interpretation of the license is reaffirmed by the specific discussion in Gibbons of the section granting the license, now 46 U.S.C. § 263. The Court pointed out that "a license to do any particular thing, is a permission or authority to do that thing; and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize. It certainly transfers to him all the right which the grantor can transfer, to do what is within the terms of the license." 9 Wheat., at 213-214. Gibbons recognized that the "grantor" was Congress. Id., at 213. Thus Gibbons expressly holds that the words used by Congress in the vessel license transfer to the licensee "all the right" which Congress has the power to convey. While appellant may be correct in arguing that at earlier times in our history there was some doubt whether Congress had power under the Commerce Clause to regulate the taking of fish in state waters,16 there can be no question today that such power exists where there is some effect on interstate commerce. Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). The movement of vessels from one State to another in search of fish, and back again to processing plants, is certainly activity which Congress could conclude affects interstate commerce. Cf. Toomer v. Witsell, 334 U.S. 385, 403-406, 68 S.Ct. 1156, 1165-1167, 92 L.Ed. 1460 (1948).17 Accordingly, we hold that, at the least, when Congress re-enacted the license form in 1936,18 using language which, according to Gibbons, gave licensees "all the right which the grantor can transfer," it necessarily extended the license to cover the taking of fish in state waters, subject to valid state conservation regulations.19
D
28
(7) Application of the foregoing principles to the present case is straightforward. Section 60 prohibits federally licensed vessels owned by nonresidents of Virginia from fishing in the Chesapeake Bay. Licensed ships owned by noncitizens are prevented by § 81.1 from catching fish anywhere in the Commonwealth. On the other hand, Virginia residents are permitted to fish commercially for menhaden subject only to seasonal and other conservation restrictions not at issue here. The challenged statutes thus deny appellees their federally granted right to engage in fishing activities on the same terms as Virginia residents. They violate the "indisputable" precept that "no State may completely exclude federally licensed commerce." Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). They must fall under the Supremacy Clause.
29
Appellant seeks to escape this conclusion by arguing that the Submerged Lands Act, 67 Stat. 29, 43 U.S.C. §§ 1301-1315, and a number of this Court's decisions20 recognize that the States have a title or ownership interest in the fish swimming in their territorial waters. It is argued that because the States "own" the fish, they can exclude federal licensees. The contention is of no avail.
30
(8) The Submerged Lands Act does give the States "title," "ownership," and "the right and power to manage, administer, lease, develop, and use" the lands beneath the oceans and natural resources in the waters within state territorial jurisdiction. 43 U.S.C. § 1311(a). But when Congress made this grant pursuant to the Property Clause of the Constitution, see Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689 (1954), it expressly retained for the United States "all constitutional powers of regulation and control" over these lands and waters "(for) purposes of commerce, navigation, national defense, and international affairs." United States v. Louisiana, 363 U.S. 1, 10, 80 S.Ct. 961, 968-969, 4 L.Ed.2d 1025 (1960); see 43 U.S.C. § 1314(a). Since the grant of the fisheries license is made pursuant to the commerce power, see supra, at 281-282; Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365, 377, 2 S.Ct. 257, 266-267, 27 L.Ed. 419 (1883), the Submerged Lands Act did not alter its pre-emptive effect. Certainly Congress did not repeal by implication, in the broad language of the Submerged Lands Act, the Licensing Act requirement of equal treatment for federal licensees.
31
(9) In any event, "(t)o put the claim of the State upon title is," in Mr. Justice Holmes' words, "to lean upon a slender reed." Missouri v. Holland, 252 U.S. 416, 434, 40 S.Ct. 382, 384, 64 L.Ed. 641 (1920). A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of "owning" wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture. Ibid.; Geer v. Connecticut, 161 U.S. 519, 539-540, 16 S.Ct. 600, 608, 40 L.Ed. 793 (1896) (Field, J., dissenting). The "ownership" language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing "the importance to its people that a State have power to preserve and regulate the exploitation of an important resource." Toomer v. Witsell, 334 U.S., at 402, 68 S.Ct., at 1165; see also Takahashi v. Fish & Game Commission, 334 U.S. 410, 420-421, 68 S.Ct. 1138, 1143, 92 L.Ed. 1478 (1948). Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution. As we have demonstrated above, Virginia has failed to do so here.21
III
32
Our decision is very much in keeping with sound policy considerations of federalism. The business of commercial fishing must be conducted by peripatetic entrepreneurs moving, like their quarry, without regard for state boundary lines. Menhaden that spawn in the open ocean or in coastal waters of a Southern State may swim into Chesapeake Bay and live there for their first summer, migrate south for the following winter, and appear off the shores of New York or Massachusetts in succeeding years. A number of coastal States have discriminatory fisheries laws,22 and with all natural resources becoming increasingly scarce and more valuable, more such restrictions would be a likely prospect, as both protective and retaliatory measures.23 Each State's fishermen eventually might be effectively limited to working in the territorial waters of their residence, or in the federally controlled fishery beyond the three-mile limit.24 Such proliferation of residency requirements for commercial fishermen would create precisely the sort of Balkanization of interstate commercial activity that the Constitution was intended to prevent. See, e. g., H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 532-539, 69 S.Ct. 657, 662-665, 93 L.Ed. 865 (1949); cf. Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974). We cannot find that Congress intended to allow any such result given the well-known construction of federal vessel licenses in Gibbons.
33
For these reasons, we conclude that §§ 60 and 81.1 are preempted by the federal Enrollment and Licensing Act. Insofar as these state laws subject federally licensed vessels owned by nonresidents or aliens to restrictions different from those applicable to Virginia residents and American citizens, they must fall under the Supremacy Clause. As we have noted above, however, reasonable and evenhanded conservation measures, so essential to the preservation of our vital marine sources of food supply, stand unaffected by our decision.
The judgment of the District Court is
34
Affirmed.
35
Mr. Justice REHNQUIST, with whom Mr. Justice POWELL joins, concurring in the judgment and concurring in part and dissenting in part.
36
I concur in the judgment of the Court and join in all but Parts II-D, and III of its opinion. As the Court states, it appears that licenses issued to appellees' ships under the federal licensing statute, 46 U.S.C. § 263, confer upon their grantees an affirmative right to engage in fishing activities in the coastal waters of the United States on the same terms as any other fishermen. I also agree that the federal statute pre-empts similar state licensing legislation which would allow some to engage in the fishery while absolutely excluding any federal licensees. This, I believe, is as much as need be said to decide the case before us. Rather than stopping there, however, the Court embroiders upon this holding a patchwork of broader language whose purpose is almost as uncertain as its long-run effect.
37
The Court's treatment of the States' interests in their coastal fisheries appears to me to cut a somewhat broader swath than is justifiable in this context. True enough, the States do not "own" free-swimming creatures within their territorial limits in any conventional sense of that term Missouri v. Holland, 252 U.S. 416, 434, 40 S.Ct. 382, 384, 64 L.Ed. 641 (1920); Pierson v. Post, 3 Cai. 175 (N.Y.1805). It is therefore no answer to an assertion of federal pre-emptive power that such action amounts to an unconstitutional appropriation of state property. But it is also clear that the States have a substantial proprietary interest sometimes described as "common ownership," Geer v. Connecticut, 161 U.S. 519, 529, 16 S.Ct. 600, 604, 40 L.Ed. 793 (1896) in the fish and game within their boundaries. This is worthy of mention not because it is inconsistent with anything contained in the Court's opinion, but because I am not sure that the States' substantial regulatory interests are given adequate shift by a single sentence casting the issue of state regulation as "simply whether the State has exercised its police power in conformity with the federal laws and Constitution." Ante, at 284-285.
38
The precedents of this Court, none of which are disputed today, have upheld a variety of regulations designed to conserve and maintain the collective natural resources of the State. Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960); Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (1914); Geer v. Connecticut, supra; Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159 (1891); McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248 (1877); Smith v. Maryland, 18 How. 71, 15 L.Ed. 269 (1855); see Takahashi v. Fish & Game Commission, 334 U.S. 410, 420-421, 68 S.Ct. 1138, 1143, 92 L.Ed. 1478 (1948). The exact bases for these decisions vary, but the cases are consistent in recognizing that the retained interests of States in such common resources as fish and game are of substantial legal moment, whether or not they rise to the level of a traditional property right. The range of regulations which a State may invoke under these circumstances is extremely broad. Neither mere displeasure with the asymmetry of the pattern of state regulation, nor a sensed tension with a federal statute will suffice to override a state enactment affecting exploitation of such a resource. Barring constitutional infirmities, only a direct conflict with the operation of federal law such as exists here will bar the state regulatory action. See Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). This is true no matter how "peripatetic" the objects of the regulation or however "Balkanized" the resulting pattern of commercial activity. Ante, at 285-287.
39
Also, I think the Court has decided more than it properly can in its reading of the Submerged Lands Act. While recognizing the Act as effecting a conveyance to the States of primary ownership and control of both "the lands beneath the oceans and natural resources in the waters within state territorial jurisdiction," ante, at 283-284, the Court makes more than can be justified of the statute's clause reserving federal control for "purposes of commerce, navigation, national defense, and international affairs." 43 U.S.C. § 1314(a). It concludes on the basis of this reservation clause that since the enrollment and licensing statute was enacted under the commerce power, the Submerged Lands Act cannot have altered its pre-emptive effect.
40
I agree that the Submerged Lands Act does not countermand the pre-emption worked by the federal licensing legislation, but this is not because that legislation was enacted pursuant to one of the four categories of constitutional powers explicitly reserved to the Federal Government in the Act. It seems to me a difficult issue, not to be decided in a single sentence, whether the States take only a statutory title and right of control subject to those encumbrances previously created by exercise of the commerce, navigation, national defense, and international affairs powers. An alternative reading would be that the reservation-of-powers clause only gives fair warning of the possibility that the Government may, at some future time and in furtherance of these specified powers, find it necessary to intrude upon state ownership and management of the coastal submerged lands and natural resources. Such a view would take the statute for what it appears to be on its face a quitclaim of the entire interest held by the Government when the Act was enacted rather than a transfer of that interest subject to regulatory enactments previously passed under one of the four powers.
41
Interpretation of this reservation clause seems unnecessary to me at this time because the primary grant of the Act does not extend to any interest over free-swimming fish. The title of the statutory section, as originally enacted and as codified, is "Lands Beneath Navigable Waters Within State Boundaries." 67 Stat. 30, 43 U.S.C., c. 29, subch. II. From this and from its language, the statute appears primarily to be a transfer of all property interest in land and natural resources within the three-mile limit. See United States v. Alaska, 422 U.S. 184, 187, 95 S.Ct. 2240, 2245, 45 L.Ed.2d 109 (1975). Section 1311(a)(1) conveys "title" and "ownership" to such land and resources and for that reason could not reasonably refer to free-swimming fish which are incapable of such ownership. Section 1311(a)(2) confers right of administration and control, and identifies the object of the conveyance again as the land and natural resources. Unless the Federal Government had an exclusive power of administration and control over fish and the background of the legislation does not suggest that it did, see United States v. California, 332 U.S. 19, 36, 67 S.Ct. 1658, 1667, 91 L.Ed. 1889 (1947); Skiriotes v. Florida, 313 U.S. 69, 74-75, 61 S.Ct. 924, 928, 85 L.Ed. 1193 (1941) then the § 1311(a)(2) transfer of the power of administration did not, in fact, alter the pre-existing powers of the States over fish at all, even assuming that it purported to encompass "natural resources" beyond those as to which title was transferred in § 1311(a)(1). Such legislation which neither affects the actual regulatory powers of the States, nor is explicit in stating that pre-existing federal regulatory measures are repealed, lacks the indicia of intent that would justify finding an implied repeal of federal legislation licensing the taking of fish in the coastal area. This is true quite apart from the reservation of powers in § 1314. I would limit our holding accordingly.
1
Section 28.1-81.1 provides:
"Licenses for taking of fish restricted to United States citizens. (a) No commercial license for the taking of food fish or fish for the manufacture into fish meal, fish oil, fish scrap or other purpose shall be granted to any person not a citizen of the United States, nor to any firm, partnership, or association unless each participant therein shall be a citizen of the United States, nor to any corporation unless the same be a citizen of the United States as hereinafter defined. This requirement shall be in addition to, and not in lieu of, any other requisite to the issuance of a license imposed by this chapter or any other provision of the Code of Virginia as amended from time to time.
"(b) Within the meaning of this section, no corporation shall be deemed a citizen of the United States unless seventy-five per centum of the interest therein shall be owned by citizens of the United States and unless its president or other chief executive officer and the chairman of its board of directors are citizens of the United States and unless no more of its directors than a minority of the number necessary to constitute a quorum are noncitizens and the corporation is organized under the laws of the United States or of a state, territory, district, or possession thereof.
"(c) Seventy-five per centum of the interest in a corporation shall not be deemed to be owned by citizens of the United States (i) if the title to seventy-five per centum of its stock is not vested in such citizens free from any trust or fiduciary obligation in favor of any person not a citizen of the United States; or (ii) if seventy-five per centum of the voting power in such corporation is not vested in citizens of the United States; or (iii) if, through any contract or understanding, it is so arranged that more than twenty-five per centum of the voting power in such corporation may be exercised, directly or indirectly, in behalf of any person who is not a citizen of the United States; or (iv) if by any other means whatsoever control of any interest in the corporation in excess of twenty-five per centum is conferred upon or permitted to be exercised by any person who is not a citizen of the United States."
2
Section 28.1-60 provides in pertinent part:
"Nonresidents generally. (1) Catching fish for oil or guano prohibited. No nonresident of this State shall take or catch any fish, in the waters of the Commonwealth, or in the waters under its joint jurisdiction, for the purpose of converting the same into oil, fish scrap, fish meal or guano, except as hereinafter provided; nor shall any nonresident be concerned or interested with any resident as partner or otherwise, except as a stockholder in a domestic corporation, in taking or catching fish in any of the waters of this State to be manufactured into oil, fish scrap, fish meal or guano, or in such manufacture, except as hereinafter provided.
"(2) Resident not to be interested. Nor shall any resident of this State be concerned or interested with any nonresident as partner or otherwise, except as stockholder in a domestic corporation, in taking or catching fish in any of the waters of this State to be manufactured into oil, fish scrap, fish meal or guano, or in such manufacture, except as hereinafter provided, or knowingly permit any nonresident to use his name for either purpose.
"(3) License for taking menhaden fish. A nonresident person, firm or corporation may take or catch the fish known as 'menhaden,' within the three-mile limit on the seacoast of Virginia and east of a straight line drawn from Cape Charles Lighthouse to Cape Henry Lighthouse for the purpose of converting the same into oil, fish scrap, fish meal or guano between the third Monday of May and the third Friday of November, inclusive, of each year; provided such person, firm or corporation has applied for and obtained license to take and catch such fish within the above-defined area and in accordance with the following requirements.
"(6) Penalty for violation. Any person, firm or corporation violating any of the provisions of this section shall be guilty of a misdemeanor.
3
The menhaden industry is, in terms of landed tonnage, the largest fishery in the United States, accounting for about 45% of our total commercial fish catch. The 1975 harvest was valued at about $50 million fresh and $80 million after processing. Menhaden are processed and used for industrial purposes including the manufacture of antibiotics, poultry and animal feed, paint, soap, lubricants, and, in Canada and Europe, margarine. The fish spend much of their life cycle in coastal estuaries or shallow water close to the ocean shore. Indeed, over 95% of the 1.8 billion pounds of menhaden taken in 1975 were caught within three miles of the coast. The fish are only found far offshore in deep water during the winter months along the South Atlantic coast. In March, they begin a northward migration traveling up the east coast in enormous schools, with some ultimately reaching north of Cape Cod. Most of the fish reverse this migration path in the fall. It is feasible to fish commercially for menhaden only during the migratory period when they are in large, dense schools close to the surface. Estuaries like the Chesapeake Bay are important nurturing grounds for the species. See U.S. Department of Commerce, Fisheries of the United States, 1975, pp. 18, 37 (1976); App. 24-25, 32-33, 73-89, 92-113.
4
Appellant's contention that the District Court should have abstained in this case to allow the Virginia courts to decide the validity of the statutes is without merit. Appellant suggests that under recent decisions, e. g., In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); 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), the alienage classification established in § 81.1 might well be ruled unconstitutional by the state courts as applied to individual resident aliens. That result is certainly plausible. See Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). It is also irrelevant.
Abstention is proper in this context only where it can be "fairly concluded that the underlying state statute is susceptible of an interpretation that might avoid the necessity for constitutional adjudication." Kusper v. Pontikes, 414 U.S. 51, 55, 94 S.Ct. 303, 306, 38 L.Ed.2d 260 (1973). But appellant's suggestion would not resolve any of the claims raised by appellees. In such circumstances, it is the "solemn responsibility" of "all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims." Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967).
5
Appellees argue in addition that federal fisheries law constitutes a comprehensive regulatory scheme not admitting of conflicting state laws. They also urge that the Virginia statutes violate the Equal Protection and Commerce Clauses and interfere with federal control of international relations.
6
The claim is, of course, statutory in the sense that it depends on interpretation of an Act of Congress, and like any other statutory decision, the result we reach here is subject to legislative overruling.
7
Vessel documentation actually dates from the first months of the Federal Government. See Act of Sept. 1, 1789, 1 Stat. 55, repealed by the Acts discussed in the text.
8
The quaint categories of the statute have remained unchanged since the "mackerel fishery" was added by the Act of May 24, 1828, c. 119, 4 Stat. 312. They seem to correspond to the only three types of sea creatures sought by organized fishing fleets at that time. See L. Sabine, Report on the Principal Fisheries of the American Seas, H.R.Exec.Doc. No. 23, 32d Cong., 2d Sess., 181 (1853).
A license for the "mackerel fishery" entitles the holder to catch "cod or fish of any other description whatever." Act of Apr. 20, 1836, c. 55, 5 Stat. 16, 46 U.S.C. § 325; 46 CFR § 67.07-13(b) (1976).
9
A vessel of more than 5 but less than 20 tons need not be enrolled in order to obtain a license. See 46 U.S.C. §§ 251, 262, 263; 46 CFR §§ 67.01-1, 67.07-13(a) (1976). No documentation is required for a vessel of less than five net tons. 46 CFR § 67.01-11(a)(5) (1976).
10
See n. 8, supra.
11
A corporation is considered to be a citizen for purposes of this requirement only if it meets the same citizenship tests imposed for registration of a vessel and, in addition, if citizens own a controlling interest in it, or for a vessel used in the coastwise trade, if citizens own a 75% interest. 46 U.S.C. § 802.
As noted above, appellees received approval from the Secretary of Commerce for the transfer of their vessels to the ultimate ownership of the noncitizen Hanson Trust, Ltd.
12
See 3 Annals of Cong. 671, 728, 738, 748, 750, 752 (1792). This history contains no debates; it merely records the legislative steps in passage of the Act. There are no committee reports available.
13
Criticism began in the concurring opinion of Mr. Justice Johnson, 9 Wheat., at 222, 231-233. He thought the Enrollment and Licensing Act was simply the American formulation of a navigation Act, commonly used by commercial nations to encourage shipping on vessels owned and manned by their citizens to promote the local economy and assure maritime strength in case of war. See generally G. Gilmore & C. Black, Jr., The Law of Admiralty §§ 11-3, 11-4 (2d ed. 1975).
Chancellor Kent soon exercised his prerogative as the country's foremost legal scholar to take sharp exception to Marshall's statutory construction:
"If congress had intended that a coasting license should confer power and control, and a claim of sovereignty subversive of local laws of the states within their own jurisdictions, it was supposed they would have said so in plain and intelligible language, and not have left their claim of supremacy to be hidden from the observation and knowledge of the state governments, in the unpretending and harmless shape of a coasting license, obviously intended for other purposes. . . . The only great point on which the Supreme Court of the United States, and the courts of this state, have differed, is in the construction and effect given to a coasting license.
"The formidable effect which has been given to a coasting license, was a perfect surprise upon the judicial authorities of this state; and none of the persons concerned in the former decisions in our state courts on this subject, ever entertained the idea, as I apprehend, that congress intended, by a coasting license, a grant of power that was to bear down all state regulations of internal commerce that stood in its way." 1 J. Kent, Commentaries on American Law 408, 411 (1st ed. 1826).
Mr. Justice Frankfurter agreed, calling Marshall's view "esoteric statutory construction." F. Frankfurter, The Commerce Clause 15, 17, 20 (1937). See also R. Faulkner, The Jurisprudence of John Marshall 85 (1968); M. Baxter, The Steamboat Monopoly 34-35, 52 (1972); Campbell, Chancellor Kent, Chief Justice Marshall and the Steamboat Cases, 25 Syracuse L.Rev. 497, 519-532 (1974); Mann, The Marshall Court: Nationalization of Private Rights and Personal Liberty from the Authority of the Commerce Clause, 38 Ind.L.J. 117, 180-181, 209-212, 236-237 (1963).
14
See Act of May 24, 1828, c. 119, 4 Stat. 312 (adding "mackerel fishery" category); Act of Apr. 20, 1836, c. 55, 5 Stat. 16 (permitting capture of all types of fish on mackerel license); Rev.Stat. §§ 4311, 4321 (1878) (codifying license provisions); Act of Apr. 18, 1874, c. 110, 18 Stat. 31 (exempting canal boats); Act of May 20, 1936, c. 434, 49 Stat. 1367 (license form amended and re-enacted). Cf. Act of Feb. 28, 1887, c. 288, 24 Stat. 435 (temporarily applying a fishing season for mackerel to federal licenses).
15
In addition to the contemporary comments of Mr. Justice Johnson and Chancellor Kent, see n. 13, supra, Thomas Jefferson's well-publicized letters were highly critical of what he saw as undue expansion of federal power, exemplified by Gibbons. See 1 C. Warren, The Supreme Court in United States History 620-621 (1937 ed.).
16
See, e. g., McCready v. Virginia, 94 U.S. 391, 395, 24 L.Ed. 248 (1877) ("There has been . . . no . . . grant of power over the fisheries (to the United States). These remain under the exclusive control of the State . . ."); Manchester v. Massachusetts, 139 U.S. 240, 258-260, 11 S.Ct. 559, 562-563, 35 L.Ed. 159 (1891); Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896); 17 Cong.Rec. 4734 (1886) (conservation amendment to fisheries license, Act of Feb. 28, 1887, c. 288, 24 Stat. 435, see n. 14, supra, believed not to apply to state territorial waters).
17
Appellant also cites cases describing fishing as a "local activity," Alaska v. Artic Maid, 366 U.S. 199, 203, 81 S.Ct. 929, 931, 6 L.Ed.2d 227 (1961), and as one that "occurs before the (fish) can be said to have entered the flow of interstate commerce," Toomer v. Witsell, 334 U.S., at 395, 68 S.Ct., at 1161. But these statements were made in upholding the right of States to tax what was argued to be interstate commerce. Pronouncements made in that context are not used interchangeably as statements of law where the issue is the power of Congress to regulate under the Commerce Clause. The restrictions imposed by the Commerce Clause standing alone may well be less than the pre-emptive reach of statutes passed by Congress pursuant to the power. Cf. Wickard v. Filburn, 317 U.S., at 121-122, 63 S.Ct., at 87-88. No federal statutory claim was raised in Toomer or Arctic Maid, and in both cases the Court noted that the challenged statute did not discriminate against interstate commerce.
18
Act of May 20, 1936, c. 434, 49 Stat. 1367. We are confident that Congress, in the midst of the New Deal legislative program, broadly construed its powers under the Commerce Clause at this time. See, e. g., Wickard v. Filburn.
19
Indeed, an amendment to the license form made at the time of the 1936 re-enactment specifically authorizes "the taking of fish." Acting to reverse a Circuit Court of Appeals decision, The Pueblos, 77 F.2d 618 (CA2 1935), Congress authorized issuance of licenses for the "coasting trade and mackerel fishery." The amendment explains that vessels so documented "shall be deemed to have sufficient license for engaging in the coasting trade and the taking of fish of every description, including shellfish." 49 Stat. 1368, 46 U.S.C. § 263. See also S.Rep.No.83, 24th Cong., 1st Sess. (1836), describing the modification in the Enrollment and Licensing Act, 5 Stat. 16, see nn. 8, 14, supra, as intended "to enable those engaged in the mackerel fishery to take other fish without incurring a penalty."
20
See cases cited in n. 16, supra.
21
Appellant claims that the challenged statutes have a legitimate conservation purpose. He argues that § 81.1 is a valid response to the grave problem of overfishing of American marine stocks by foreign fleets. Similarly, § 60 is said to be an essential enforcement mechanism for net size restrictions on menhaden fishermen.
The claims are specious. Virginia makes no attempt to restrict the quantity of menhaden caught by her own residents. A statute that leaves a State's residents free to destroy a natural resource while excluding aliens or nonresidents is not a conservation law at all. It bears repeating that a "state may not use its admitted powers to protect the health and safety of its people as a basis for suppressing competition." H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 538, 69 S.Ct. 657, 665, 93 L.Ed. 865 (1949). A State cannot escape this principle by cloaking objectionable legislation in the currently fashionable garb of environmental protection. Moreover, despite its foreign ownership, Seacoast is subject to all United States shipping and fisheries laws. And the record does not support the claim based on enforcement of the net-size restriction.
Furthermore, the cases upon which appellant relies are factually distinguishable. In McCready v. Virginia and Geer v. Connecticut, neither petitioner asserted a claim under a pre-emptive Act of Congress. Smith v. Maryland, 18 How. 71 (1855), Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159 (1891), and Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960), did raise Licensing Act claims, but the statutes there upheld operated equally against residents and nonresidents.
22
Among those States filing briefs as amici curiae in support of Virginia, see, e. g., Md.Nat.Res.Ann. Code §§ 4-703, 4-704(b) (1974); Mass.Gen.Laws Ann. c. 130, § 99 (1974); Act of Feb. 20, 1923, 1923 Mass.Acts c. 35, as amended by Act of Mar. 13, 1962, 1962 Mass.Acts c. 219; Act of Mar. 23, 1936, 1936 Mass.Acts c. 158; N.Y.Envir.Conserv.Law §§ 13-0333(4), 13-0335(2), 13-0341(7) (McKinney 1973). See also Va.Code Ann. § 28.1-57 (1973).
23
The Court was aware of this threat in Gibbons. A number of States had enacted steamboat monopoly legislation. See, e. g., Abel, Commerce Regulation before Gibbons v. Ogden : Interstate Transportation Facilities, 25 N.C.L.Rev. 121, 159-160 (1947); M. Baxter, The Steamboat Monopoly 7, 16 (1972). Connecticut and Ohio retaliated against the Livingston-Fulton monopoly by forbidding its licensees from entering their waters; New Jersey not only did that, but also granted a right of action for treble damages against anyone obtaining an injunction under New York law. See Gibbons v. Ogden, 9 Wheat., at 4-5 (argument of Daniel Webster); Abel, supra, at 160; Baxter, supra, at 25-30.
24
As of March 1, 1977, United States jurisdiction for fishery management was extended from 12 to 200 nautical miles from our coasts. 90 Stat. 336, 16 U.S.C. § 1811 (1976 ed.).
| 910
|
431 U.S. 181
97 S.Ct. 1814
52 L.Ed.2d 238
UNITED STATES, Petitioner,v.Gregory V. WASHINGTON.
No. 74-1106.
Argued Dec. 6, 1976.
Decided May 23, 1977.
Syllabus
Respondent, who was suspected, with others, of possible implication in a theft, was subpoenaed to appear as a witness before the District of Columbia grand jury investigating the crime. The prosecutor did not advise respondent before his appearance that he might be indicted for the theft, but respondent was given a series of warnings after being sworn, including the warning that he had a right to remain silent. Respondent nevertheless testified, and subsequently was indicted for the theft. The trial court granted respondent's motion to suppress his grand jury testimony and to quash the indictment on the ground that it was based on evidence obtained in violation of his Fifth Amendment privilege against compelled self-incrimination. The District of Columbia Court of Appeals affirmed the suppression order, holding that "the most significant failing of the prosecutor was in not advising (respondent) that he was a potential defendant" and that "(a)nother shortcoming was in the prosecutor's waiting until after administering the oath in the cloister of the grand jury before undertaking to furnish what advice was given." Held : Respondent's grand jury testimony may properly be used against him in a subsequent trial. The comprehensive warnings he received, whether or not such warnings were constitutionally required, dissipated any element of compulsion to self-incrimination that might otherwise have been present. The fact that a subpoenaed grand jury witness is a putative or potential defendant neither impairs nor enlarges his constitutional rights, and hence it is unnecessary to give such a defendant the warnings that the Court of Appeals held were required. Pp. 186-190.
328 A.2d 98, reversed and remanded.
William F. Sheehan, III, Washington, D. C., for petitioner.
Frederick H. Weisberg, Washington, D. C., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The question presented in this case is whether testimony given by a grand jury witness suspected of wrongdoing may be used against him in a later prosecution for a substantive criminal offense when the witness was not informed in advance of his testimony that he was a potential defendant in danger of indictment.1
2
(1)
3
The facts are not in dispute. Zimmerman and Woodard were driving respondent's van truck when a Washington, D.C., policeman stopped them for a traffic offense. Seeing a motorcycle in the rear of the van which he identified as stolen, the officer arrested both men and impounded respondent's vehicle. When respondent came to reclaim the van, he told police that Zimmerman and Woodard were friends who were driving the van with his permission.
4
He explained the presence of the stolen motorcycle by saying that while driving the van himself he had stopped to assist an unknown motorcyclist whose machine had broken down. Respondent then allowed the motorcycle to be placed in his van to take it for repairs. Soon after this the van stalled and he walked to a nearby gasoline station to call Zimmerman and Woodard for help, leaving the van with the unknown motorcyclist. After reaching Zimmerman by phone, respondent waited at the gasoline station for his friends, then returned to the spot he had left the van when they failed to appear; by that time the van had disappeared. Respondent said he was not alarmed, assuming his friends had repaired the van and driven it away. Shortly thereafter, Zimmerman and Woodard were arrested with the stolen motorcycle in the van.
5
Not surprisingly, the officer to whom respondent related this tale was more than a little skeptical; he told respondent he did not believe his story, and advised him not to repeat it in court, "because you're liable to be in trouble if you (do so)." The officer also declined to release the van. Respondent then repeated this story to an Assistant United States Attorney working on the case. The prosecutor, too, was dubious of the account; nevertheless, he released the van to respondent. At the same time, he served respondent with a subpoena to appear before the grand jury investigating the motorcycle theft.
6
When respondent appeared before the grand jury, the Assistant United States Attorney in charge had not yet decided whether to seek an indictment against him. The prosecutor was aware of respondent's explanation, and was also aware of the possibility that respondent could be indicted by the grand jury for the theft if his story was not believed.
7
The prosecutor did not advise respondent before his appearance that he might be indicted on a criminal charge in connection with the stolen motorcycle. But respondent, after reciting the usual oath to tell the truth, was given a series of other warnings, as follows:
8
"Q . . . .
9
"You have a right to remain silent. You are not required to say anything to us in this Grand Jury at any time or to answer any question.2
10
"Anything you say can be used against you in Court.
11
"You have the right to talk to a lawyer for advice before we question you and have him outside the Grand Jury during any questioning.
12
"If you cannot afford a lawyer and want one a lawyer will be provided for you.
13
"If you want to answer questions now without a lawyer present you will still have the right to stop answering at any time.
14
"You also have the right to stop answering at any time until you talk to a lawyer.
15
"Now, do you understand those rights, sir?
16
"A Yes, I do.
17
"Q And do you want to answer questions of the Grand Jury in reference to a stolen motorcycle that was found in your truck?
18
"A Yes, sir.
19
"Q And do you want a lawyer here or outside the Grand Jury room while you answer those questions?
20
"A No, I don't think so."
21
In response to questions, respondent again related his version of how the stolen motorcycle came to be in the rear of his van. Subsequently, the grand jury indicted respondent, Zimmerman, and Woodard for grand larceny and receiving stolen property.
22
Respondent moved to suppress his testimony and quash the indictment, arguing that it was based on evidence obtained in violation of his Fifth Amendment privilege against compelled self-incrimination. The Superior Court for the District of Columbia suppressed the testimony and dismissed the indictment, holding that before the Government could use respondent's grand jury testimony at trial, it had first to demonstrate that respondent had knowingly waived his privilege against compelled self-incrimination. Notwithstanding the comprehensive warnings described earlier, the court found no effective waiver had been made, holding that respondent was not properly advised of his Fifth Amendment rights. The court thought the Constitution required, at a minimum, that
23
"inquiry be made of the suspect to determine what his educational background is, and what his formal education is and whether or not he understands that this is a constitutional privilege and whether he fully understands the consequences of what might result in the event that he does waive his constitutional right and in the event that he does make incriminatory statements . . . ."
24
The court also held that respondent should have been told that his testimony could lead to his indictment by the grand jury before which he was testifying, and could then be used to convict him in a criminal prosecution.
25
The District of Columbia Court of Appeals affirmed the suppression order. 328 A.2d 98 (1974).3 That court also took the position that "the most significant failing of the prosecutor was in not advising (respondent) that he was a potential defendant. Another shortcoming was in the prosecutor's waiting until after administering the oath in the cloister of the grand jury before undertaking to furnish what advice was given." Id., at 100.4
26
(2)
27
The implicit premise of the District of Columbia Court of Appeals' holding is that a grand jury inquiry, like police custodial interrogation, is an "interrogation of persons suspected or accused of crime (that) contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. at 1624 (1966). But this Court has not decided that the grand jury setting presents coercive elements which compel witnesses to incriminate themselves. Nor have we decided whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses; moreover, we have no occasion to decide these matters today, for even assuming that the grand jury setting exerts some pressures on witnesses generally or on those who may later be indicted, the comprehensive warnings respondent received in this case plainly satisfied any possible claim to warnings. Accordingly, respondent's grand jury testimony may properly be used against him in a subsequent trial for theft of the motorcycle.
28
Although it is well settled that the Fifth Amendment privilege extends to grand jury proceedings, Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), it is also axiomatic that the Amendment does not automatically preclude self-incrimination, whether spontaneous or in response to questions put by government officials. "It does not preclude a witness from testifying voluntarily in matters which may incriminate him," United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 376 (1943), for "those competent and freewilled to do so may give evidence against the whole world, themselves included." United States v. Kimball, 117 F. 156, 163 (CCSDNY 1902); accord, Miranda, supra, 384 U.S., at 478, 86 S.Ct., at 1629; Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. In addition to guaranteeing the right to remain silent unless immunity is granted, the Fifth Amendment proscribes only self-incrimination obtained by a "genuine compulsion of testimony." Michigan v. Tucker, supra, 417 U.S., at 440, 94 S.Ct., at 2361. Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions. Accordingly, unless the record reveals some compulsion, respondent's incriminating testimony cannot conflict with any constitutional guarantees of the privilege.5
29
The Constitution does not prohibit every element which influences a criminal suspect to make incriminating admissions. See Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976); Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 223-227, 93 S.Ct. 2041, 2045-2047, 36 L.Ed.2d 854 (1973). Of course, for many witnesses the grand jury room engenders an atmosphere conducive to truth telling, for it is likely that upon being brought before such a body of neighbors and fellow citizens, and having been placed under a solemn oath to tell the truth, many witnesses will feel obliged to do just that. But it does not offend the guarantees of the Fifth Amendment if in that setting a witness is more likely to tell the truth than in less solemn surroundings. The constitutional guarantee is only that the witness be not compelled to give self-incriminating testimony. The test is whether, considering the totality of the circumstances, the free will of the witness was overborne. Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961).
30
(3)
31
After being sworn, respondent was explicitly advised that he had a right to remain silent and that any statements he did make could be used to convict him of crime. It is inconceivable that such a warning would fail to alert him to his right to refuse to answer any question which might incriminate him. This advice also eliminated any possible compulsion to self-incrimination which might otherwise exist. To suggest otherwise is to ignore the record and reality. Indeed, it seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled. Moreover, any possible coercion or unfairness resulting from a witness' misimpression that he must answer truthfully even questions with incriminatory aspects is completely removed by the warnings given here. Even in the presumed psychologically coercive atmosphere of police custodial interrogation, Miranda does not require that any additional warnings be given simply because the suspect is a potential defendant; indeed, such suspects are potential defendants more often than not. United States v. Binder, 453 F.2d 805, 810 (CA2 1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2458, 32 L.Ed.2d 805 (1972).
32
Respondent points out that unlike one subject to custodial interrogation, whose arrest should inform him only too clearly that he is a potential criminal defendant, a grand jury witness may well be unaware that he is targeted for possible prosecution. While this may be so in some situations, it is an overdrawn generalization. In any case, events here clearly put respondent on notice that he was a suspect in the motorcycle theft. He knew that the grand jury was investigating that theft and that his involvement was known to the authorities. Respondent was made abundantly aware that his exculpatory version of events had been disbelieved by the police officer, and that his friends, whose innocence his own story supported, were to be prosecuted for the theft. The interview with the prosecutor put him on additional notice that his implausible story was not accepted as true. The warnings he received in the grand jury room served further to alert him to his own potential criminal liability. In sum, by the time he testified respondent knew better than anyone else of his potential defendant status.
33
However, all of this is largely irrelevant, since we do not understand what constitutional disadvantage a failure to give potential defendant warnings could possibly inflict on a grand jury witness, whether or not he has received other warnings. It is firmly settled that the prospect of being indicted does not entitle a witness to commit perjury, and witnesses who are not grand jury targets are protected from compulsory self-incrimination to the same extent as those who are. Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential-defendant warnings add nothing of value to protection of Fifth Amendment rights.
34
Respondent suggests he must prevail under Garner v. United States, supra. There, the petitioner was charged with a gambling conspiracy. As part of its case, the Government introduced Garner's income tax returns, in one of which he had identified his occupation as "professional gambler," and in all of which he had reported substantial income from wagering. The Court recognized that Garner was indeed compelled by law to file a tax return, but held that this did not constitute compelled self-incrimination. The Court noted that Garner did not claim his Fifth Amendment privilege, instead making the incriminating disclosure that he was a professional gambler. Garner holds that the Self-Incrimination Clause is violated only when the Government compels disclosures which it knows will incriminate the declarant that is, only when it intentionally places the individual under "compulsions to incriminate, not merely compulsions to make unprivileged disclosures." 424 U.S., at 657, 96 S.Ct., at 1184. But the distinction between compulsion to incriminate and compulsion to disclose what the Government is entitled to know is of no help to respondent; in this case there was no compulsion to do either.
35
In Beckwith v. United States, decided shortly after Garner, we reaffirmed the need for showing overbearing compulsion as a prerequisite to a Fifth Amendment violation. There, the Government agent interrogated the taxpayer for the explicit purpose of securing information that would incriminate him. There, as here, the interrogation was not conducted in an inherently coercive setting; hence the claim of compelled self-incrimination was rejected.6
36
(4)
37
Since warnings were given, we are not called upon to decide whether such warnings were constitutionally required. However, the District of Columbia Court of Appeals held that whatever warnings are required are insufficient if given "in the cloister of the grand jury." 328 A.2d at 100. That court gave no reason for its view that warnings must be given outside the presence of the jury, but respondent now advances two justifications. First, it could be thought that warnings given to respondent before the grand jury came too late, because of the short time to assimilate their significance, and because of the presence of the grand jurors. But respondent does not contend that he did not understand the warnings given here. In any event, it is purely speculative to attribute any such effects to warnings given in the presence of the jury immediately before taking the stand. If anything, the proximity of the warnings to respondent's testimony and the solemnity of the grand jury setting seem likely to increase their effectiveness.
38
Second, respondent argues that giving the oath in the presence of the grand jury undermines assertion of the Fifth Amendment privilege by placing the witness in fear that the grand jury will infer guilt from invocation of the privilege. But this argument entirely overlooks that the grand jury's historic role is an investigative body; it is not the final arbiter of guilt or innocence. Moreover, it is well settled that invocation of the Fifth Amendment privilege in a grand jury proceeding is not admissible in a criminal trial, where guilt or innocence is actually at stake.
39
The judgment of the Court of Appeals is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
40
Reversed and remanded.
41
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
42
The general rule that a witness must affirmatively claim the privilege against compulsory self-incrimination must in my view admit of an exception in the case of a grand jury witness whom the prosecutor interrogates with the express purpose of getting evidence upon which to base a criminal charge against him. In such circumstances, even warnings, before interrogation, of his right to silence do not suffice. The privilege is emptied of substance unless the witness is further advised by the prosecutor that he is a potential defendant. Only if the witness then nevertheless intentionally and intelligently waives his right to be free from compulsory self-incrimination and submits to further interrogation should use of his grand jury testimony against him be sanctioned. As I stated in United States v. Mandujano, 425 U.S. 564, at 598-600, 96 S.Ct. 1768, at 1787 (1976) (concurring in judgment):
43
"I would hold that, in the absence of an intentional and intelligent waiver by the individual of his known right to be free from compulsory self-incrimination, the Government may not call before a grand jury one whom it has probable cause as measured by an objective standard to suspect of committing a crime, and by use of judicial compulsion compel him to testify with regard to that crime. In the absence of such a waiver, the Fifth Amendment requires that any testimony obtained in this fashion be unavailable to the Government for use at trial. Such a waiver could readily be demonstrated by proof that the individual was warned prior to questioning that he is currently subject to possible criminal prosecution for the commission of a stated crime . . . ."
44
In this case, although respondent Washington was advised of his rights to silence and to talk to a lawyer before he appeared before the grand jury, he was "only told that he was needed as a witness in prosecuting the two who were occupants of the van at the time of its impoundment." 328 A.2d 98, 100 (1974). He was never told that he was in danger of being indicted himself, even though "at the time of his grand jury appearance respondent was a potential defendant whose indictment was considered likely by the prosecution." Ante, at 186 n. 4.
45
The ancient privilege of a witness against being compelled to incriminate himself is precious to free men as a shield against high-handed and arrogant inquisitorial practices. It has survived centuries of controversies, periodically kindled by popular impatience that its protection sometimes allows the guilty to escape punishment. But it has endured as a wise and necessary protection of the individual against arbitrary power, and the price of occasional failures of justice is paid in the larger interest of general personal security.
46
I would hold that a failure to warn the witness that he is a potential defendant is fatal to an indictment of him when it is made unmistakably to appear, as here, that the grand jury inquiry became an investigation directed against the witness and was pursued with the purpose of compelling him to give self-incriminating testimony upon which to indict him. I would further hold that without such prior warning and the witness' subsequent voluntary waiver of his privilege, there is such gross encroachment upon the witness' privilege as to render worthless the values protected by it unless the self-incriminating testimony is unavailable to the Government for use at any trial brought pursuant to even a valid indictment.
47
It should be remarked that, of course, today's decision applies only to application of the privilege against self-incrimination secured by the Fifth Amendment to the United States Constitution.* The holding does not affect the authority of state courts to construe counterpart provisions of state constitutions even identically phrased provisions "to give the individual greater protection than is provided" by the federal provision. State v. Johnson, 68 N.J. 349, 353, 346 A.2d 66, 67-68 (1975). See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977).
48
A number of state courts have recognized that a defendant or potential defendant called before a grand jury is privileged against the State's using his self-incriminating testimony to procure an indictment or using it to introduce against him at trial, even in the absence of an affirmative claim of his privilege against self-incrimination. See, e. g., People v. Laino, 10 N.Y.2d 161, 218 N.Y.S.2d 647, 176 N.E.2d 571 (1961); State v. Fary, 19 N.J. 431, 437-438, 117 A.2d 499, 503 (1955); Taylor v. Commonwealth, 274 Ky. 51, 118 S.W.2d 140 (1938); State v. Corteau, 198 Minn. 433, 270 N.W. 144 (1936); Culbreath v. State, 22 Ala.App. 143, 113 So. 465 (1927). See additional cases in Annot., Privilege Against Self-incrimination as to Testimony before Grand Jury, 38 A.L.R.2d 225, 290-294 (1954). One court has specifically held that interrogating a potential defendant "under (the) guise of examining him as to the guilt of someone else" is a violation of the defendant's privilege against self-incrimination. People v. Cochran, 313 Ill. 508, 526, 145 N.E. 207, 214 (1924). See also Newman, The Suspect and the Grand Jury: A Need for Constitutional Protection, 11 U.Rich.L.Rev. 1 (1976); Comment, The Grand Jury Witness' Privilege Against Self-Incrimination, 62 Nw.U.L.Rev. 207, 223 (1967); Meshbesher, Right to Counsel before Grand Jury, 41 F.R.D. 189, 191 (1966). The rationale of these decisions which I would find applicable to the case now before us is that where the grand jury investigation is in fact a proceeding against the witness, or even if begun as a general investigation it becomes a proceeding against the witness, the encroachment upon the witness' privilege requires that a court deny to the prosecution the use of the witness' self-incriminating testimony.
1
With United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), and United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231, we have settled that grand jury witnesses, including those already targeted for indictment, may be convicted of perjury on the basis of their false grand jury testimony even though they were not first advised of their Fifth Amendment privilege against compelled self-incrimination.
2
This was an obvious overstatement of respondent's constitutional rights; the very purpose of the grand jury is to elicit testimony, and it can compel answers, by use of contempt powers, to all except self-incriminating questions.
After the oral warnings, respondent was also handed a card containing all the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and a waiver form acknowledging that the witness waived the privilege against compelled self-incrimination. Respondent signed the waiver.
3
The Court of Appeals declined to dismiss the indictment, however, relying on a line of cases in this Court holding that an indictment returned by a properly constituted grand jury is not subject to challenge on the ground that it was based on unconstitutionally obtained evidence. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). Respondent's cross-petition seeking review of this portion of the Court of Appeals' ruling was denied, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830 (1976), and the validity of the indictment is not an issue in this case.
4
Though both courts below found no effective waiver of Fifth Amendment rights, neither court found, and no one suggests here, that respondent's signing of the waiver-of-rights form was involuntary or was made without full appreciation of all the rights of which he was advised. The Government does not challenge, and we do not disturb, the finding that at the time of his grand jury appearance respondent was a potential defendant whose indictment was considered likely by the prosecution.
5
In Miranda, the Court saw as inherently coercive any police custodial interrogation conducted by isolating the suspect with police officers; therefore, the Court established a per se rule that all incriminating statements made during such interrogation are barred as "compelled." All Miranda's safeguards, which are designed to avoid the coercive atmosphere, rest on the overbearing compulsion which the Court thought was caused by isolation of a suspect in police custody. See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Garner v. United States, 424 U.S. 648, 653-654, 96 S.Ct. 1178, 1181-1182, 47 L.Ed.2d 370 (1976); Michigan v. Tucker, 417 U.S., at 444, 94 S.Ct., at 2363.
6
Although the District of Columbia Court of Appeals rested its holding solely on the Self-Incrimination Clause of the Fifth Amendment, respondent urges the Fifth Amendment Due Process Clause. He contends it is fundamentally unfair to elicit incriminating testimony from a potential defendant without first informing him of his target status. This, it is argued, would alert the witness more pointedly so as to enable him to decide whether to invoke the privilege against compelled self-incrimination. This line of argument simply restates respondent's claims under the Self-Incrimination Clause and is rejected for the same reasons. Moreover, there is no evidence of any governmental misconduct which undermined the fairness of the proceedings.
*
Of course, it is still open to the District of Columbia Court of Appeals, under its supervisory powers, on remand to order and enforce compliance with what it considers proper procedures before the grand jury, Ristaino v. Ross, 424 U.S. 589, 597 n. 9, 96 S.Ct. 1017, 1022, 47 L.Ed.2d 258 (1976); United States v. Jacobs, 547 F.2d 772 (CA2 1976), cert. pending, No. 76-1193.
| 01
|
431 U.S. 553
97 S.Ct. 1885
52 L.Ed.2d 571
UNITED AIR LINES, INC., Petitioner,v.Carolyn J. EVANS.
No. 76-333.
Argued March 29, 1977.
Decided May 31, 1977.
Syllabus
Where respondent female flight attendant failed to file a timely claim against petitioner airline for violation of Title VII of the Civil Rights Act of 1964 when her employment was terminated in 1968 pursuant to a later invalidated policy because she got married, petitioner held not to commit a present, continuing violation of Title VII by refusing to credit respondent, after rehiring her in 1972, with pre-1972 seniority, absent any allegation that petitioner's seniority system, which is neutral in its operation, discriminates against former female employees or victims of past discrimination. Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444, distinguished. Moreover, § 703(h) of Title VII, which provides that it shall not be an unlawful employment practice to apply different terms of employment pursuant to a bona fide seniority system if any disparity is not the result of intentional discrimination, bars respondent's claim, absent any attack on the bona fides of petitioner's seniority system or of any charge that the system is intentionally designed to discriminate because of race, color, religion, sex, or national origin. Pp. 557-560.
7 Cir., 534 F.2d 1247, reversed.
Stuart Bernstein, Chicago, Ill., for petitioner.
Alan M. Levin, Evanston, Ill., for respondent, pro hac vice, by special leave of Court.
Mr. Justice STEVENS delivered the opinion of the Court.
1
Respondent was employed by United Air Lines as a flight attendant from November 1966 to February 1968. She was rehired in February 1972. Assuming, as she alleges, that her separation from employment in 1968 violated Title VII of the Civil Rights Act of 1964,1 the question now presented is whether the employer is committing a second violation of Title VII by refusing to credit her with seniority for any period prior to February 1972.
2
Respondent filed charges with the Equal Employment Opportunity Commission in February 1973 alleging that United discriminated and continues to discriminate against her because she is a female. After receiving a letter granting her the right to sue, she commenced this action in the United States District Court for the Northern District of Illinois. Because the District Court dismissed her complaint, the facts which she has alleged are taken as true. They may be simply stated.
3
(1) During respondent's initial period of employment, United maintained a policy of refusing to allow its female flight attendants to be married.2 When she married in 1968, she was therefore forced to resign. Although it was subsequently decided that such a resignation violated Title VII, Sprogis v. United Air Lines, 444 F.2d 1194 (CA7 1971), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543, respondent was not a party to that case and did not initiate any proceedings of her own in 1968 by filing a charge with the EEOC within 90 days of her separation.3 A claim based on that discriminatory act is therefore barred.4
4
In November 1968, United entered into a new collective-bargaining agreement which ended the pre-existing "no marriage" rule and provided for the reinstatement of certain flight attendants who had been terminated pursuant to that rule. Respondent was not covered by that agreement. On several occasions she unsuccessfully sought reinstatement; on February 16, 1972, she was hired as a new employee. Although her personnel file carried the same number as it did in 1968, for seniority purposes she has been treated as though she had no prior service with United.5 She has not alleged that any other rehired employees were given credit for prior service with United, or that United's administration of the seniority system has violated the collective-bargaining agreement covering her employment.6
5
Informal requests to credit her with pre-1972 seniority having been denied, respondent commenced this action.7 The District Court dismissed the complaint, holding that the failure to file a charge within 90 days of her separation in 1968 caused respondent's claim to be time barred and foreclosed any relief under Title VII.8
6
A divided panel of the Court of Appeals initially affirmed; then, after our decision in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444, the panel granted respondent's petition for rehearing and unanimously reversed. 534 F.2d 1247 (CA7 1976). We granted certiorari, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282, and now hold that the complaint was properly dismissed.
7
(2) Respondent recognizes that it is now too late to obtain relief based on an unlawful employment practice which occurred in 1968. She contends, however, that United is guilty of a present, continuing violation of Title VII and therefore that her claim is timely.9 She advances two reasons for holding that United's seniority system illegally discriminates against her: First, she is treated less favorably than males who were hired after her termination in 1968 and prior to her re-employment in 1972; second, the seniority system gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination. Neither argument persuades us that United is presently violating the statute.
8
It is true that some male employees with less total service than respondent have more seniority than she. But this disparity is not a consequence of their sex, or of her sex. For females hired between 1968 and 1972 also acquired the same preference over respondent as males hired during that period. Moreover, both male and female employees who had service prior to February 1968, who resigned or were terminated for a nondiscriminatory reason (or for an unchallenged discriminatory reason), and who were later re-employed, also were treated as new employees receiving no seniority credit for their prior service. Nothing alleged in the complaint indicates that United's seniority system treats existing female employees differently from existing male employees, or that the failure to credit prior service differentiates in any way between prior service by males and prior service by females. Respondent has failed to allege that United's seniority system differentiates between similarly situated males and females on the basis of sex.
9
(3) Respondent is correct in pointing out that the seniority system gives present effect to a past act of discrimination. But United was entitled to treat that past act as lawful after respondent failed to file a charge of discrimination within the 90 days then allowed by § 706(d). A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.
10
Respondent emphasizes the fact that she has alleged a continuing violation. United's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists. She has not alleged that the system discriminates against former female employees or that it treats former employees who were discharged for a discriminatory reason any differently from former employees who resigned or were discharged for a non-discriminatory reason. In short, the system is neutral in its operation.10
11
Our decision in Franks v. Bowman Transportation Co., supra, does not control this case. In Franks we held that retroactive seniority was an appropriate remedy to be awarded under § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g) (1970 ed., Supp. V), an illegal discriminatory act or practice had been proved, 424 U.S., at 762-768, 96 S.Ct., at 1263-1266. When that case reached this Court, the issues relating to the timeliness of the charge11 and the violation of Title VII12 had already been decided; we dealt only with a question of remedy. In contrast, in the case now before us we do not reach any remedy issue because respondent did not file a timely charge based on her 1968 separation and she has not alleged facts establishing a violation since she was rehired in 1972.13
12
The difference between a remedy issue and a violation issue is highlighted by the analysis of § 703(h) of Title VII in Franks.14 As we held in that case, by its terms that section does not bar the award of retroactive seniority after a violation has been proved. Rather, § 703(h) "delineates which employment practices are illegal and thereby prohibited and which are not," 424 U.S., at 758, 96 S.Ct., at 1261.
13
(4) That section expressly provides that it shall not be an unlawful employment practice to apply different terms of employment pursuant to a bona fide seniority system, provided that any disparity is not the result of intentional discrimination. Since respondent does not attack the bona fides of United's seniority system, and since she makes no charge that the system is intentionally designed to discriminate because of race, color, religion, sex, or national origin, § 703(h) provides an additional ground for rejecting her claim.
14
(5) The Court of Appeals read § 703(h) as intended to bar an attack on a seniority system based on the consequences of discriminatory acts which occurred prior to the effective date of Title VII in 1965,15 but having no application to such attacks based on acts occurring after 1965. This reading of § 703(h) is too narrow. The statute does not foreclose attacks on the current operation of seniority systems which are subject to challenge as discriminatory. But such a challenge to a neutral system may not be predicated on the mere fact that a past event which has no present legal significance has affected the calculation of seniority credit, even if the past event might at one time have justified a valid claim against the employer. A contrary view would substitute a claim for seniority credit for almost every claim which is barred by limitations. Such a result would contravene the mandate of § 703(h).
15
The judgment of the Court of Appeals is reversed.
16
It is so ordered.
17
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
18
But for her sex, respondent Carolyn Evans presently would enjoy all of the seniority rights that she seeks through this litigation. Petitioner United Air Lines has denied her those rights pursuant to a policy that perpetuates past discrimination by awarding the choicest jobs to those possessing a credential married women were unlawfully prevented from acquiring: continuous tenure with United. While the complaint respondent filed in the District Court was perhaps inartfully drawn,1 it adequately draws into question this policy of United's.
19
For the reasons stated in the Court's opinion and in my separate, opinion in Teamsters v. United States, 431 U.S. 324, 378, 97 S.Ct. 1843, 1875, 52 L.Ed.2d 396, I think it indisputable that, absent § 703(h), the seniority system at issue here would constitute an "unlawful employment practice" under Title VII, 42 U.S.C. § 2000e-2(a)(2) (1970 ed., Supp. V). And for the reasons developed at length in my separate opinion in Teamsters, ante, at 381-394, 97 S.Ct., at 1878-1885, I believe § 703(h) does not immunize seniority systems that perpetuate post-Act discrimination.
20
The only remaining question is whether Ms. Evans' complaint is barred by the applicable statute of limitations, 42 U.S.C. § 2000e-5(e) (1970 ed., Supp. V). Her cause of action accrued, if at all, at the time her seniority was recomputed after she was rehired. Although she apparently failed to file a charge with the EEOC within 180 days after her seniority was determined, Title VII recognizes that certain violations, once commenced, are continuing in nature. In these instances, discriminatees can file charges at any time up to 180 days after the violation ceases. (They can, however, receive backpay only for the two years preceding the filing of charges with the Equal Employment Opportunity Commission. 42 U.S.C. § 2000e-5(g) (1970 ed., Supp. V).) In the instant case, the violation treating respondent as a new employee even though she was wrongfully forced to resign is continuing to this day. Respondent's charge therefore was not time barred, and the Court of Appeals judgment reinstating her complaint should be affirmed.2
1
78 Stat. 253. Title VII, as amended, is codified in 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V).
2
At that time United required that all flight attendants be female, except on flights between the mainland and Hawaii and on overseas military charter flights. See Sprogis v. United Air Lines, 444 F.2d 1194, 1203 (CA7 1971) (Stevens, J., dissenting); cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543.
3
Section 706(d), 78 Stat. 260, 42 U.S.C. § 2000e-5(e), then provided in part:
"A charge under subsection (a) shall be filed within ninety days after the alleged unlawful employment practice occurred . . . ."
The 1972 amendments to Title VII added a new subsection (a) to § 706. Consequently, subsection (d) was redesignated as subsection (e). At the same time it was amended to enlarge the limitations period to 180 days. See 86 Stat. 105, 42 U.S.C. § 2000e-5(e) (1970 ed., Supp. V).
4
Timely filing is a prerequisite to the maintenance of a Title VII action. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147. See Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 239-240, 97 S.Ct. 441, 448-449, 50 L.Ed.2d 427.
5
Respondent is carried on two seniority rolls. Her "company" or "system" seniority dates from the day she was rehired, February 16, 1972. Her "stewardess" or "pay" seniority dates from the day she completed her flight attendant training, March 16, 1972. One or both types of seniority determine a flight attendant's wages; the duration and timing of vacations; rights to retention in the event of layoffs and rights to re-employment thereafter; and rights to preferential selection of flight assignments. App. 5-6, 10.
6
Under the provisions of the collective-bargaining agreement between United and the Air Line Stewardesses and Flight Stewards as represented by the Air Line Pilots Association International for the period 1972-1974, seniority is irrevocably lost or broken after the separation from employment of a flight attendant "who resigns or whose services with the Company are permanently severed for just cause." Brief for Respondent 6.
7
The relief requested in respondent's complaint included an award of seniority to the starting date of her initial employment with United and backpay "lost as a result of the discriminatory employment practices of (United)." App. 8. In her brief in this Court, respondent states that she seeks backpay only since her date of rehiring, February 16, 1972, which would consist of the increment in pay and benefits attributable to her lower seniority since that time. Brief for Respondent 4.
8
The District Court recited that the motion was filed pursuant to Fed.Rule Civ.Proc. 12(b)(1) and dismissed the complaint on the ground that it had no jurisdiction of a time-barred claim. The district Court also held, however, that the complaint did not allege any continuing violation. For that reason, the complaint was ripe for dismissal under Rule 12(b)(6). The District Court stated:
"Plaintiff asserts that by defendant's denial of her seniority back to the starting date of her original employment in 1966, United is currently perpetuating the effect of past discrimination.
"Plaintiff, however, has not been suffering from any 'continuing' violation. She is seeking to have this court merely reinstate her November, 1966 seniority date which was lost solely by reason of her February, 1968 resignation. The fact that that resignation was the result of an unlawful employment practice is irrelevant for purposes of these proceedings because plaintiff lost her opportunity to redress that grievance when she failed to file a charge within ninety days of February, 1968. United's subsequent employment of plaintiff in 1972 cannot operate to resuscitate such a time-barred claim." App. 18.
9
Respondent cannot rely for jurisdiction on the single act of failing to assign her seniority credit for her prior service at the time she was rehired, for she filed her discrimination charge with the Equal Employment Opportunity Commission on February 21, 1973, more than one year after she was rehired on February 16, 1972. The applicable time limit in February 1972, was 90 days; effective March 24, 1972, this time was extended to 180 days, see n. 3, supra.
10
This case does not involve any claim by respondent that United's seniority system deterred her from asserting any right granted by Title VII. It does not present the question raised in the so-called departmental seniority cases See, e. g., Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (ED Va.1968).
11
The Court of Appeals had disposed of the timeliness issues in Franks, 495 F.2d 398, 405 (CA5 1974).
12
This finding of the District Court was unchallenged in the Court of Appeals, id., at 402, 403, and was assumed in this Court, 424 U.S., at 750, 96 S.Ct., at 1257.
In any event we noted in Franks: "The underlying legal wrong affecting (the class) is not the alleged operation of a racially discriminatory seniority system but of a racially discriminatory hiring system." Id., at 758, 96 S.Ct., at 1261.
13
At the time she was rehired in 1972, respondent had no greater right to a job than any other applicant for employment with United. Since she was in fact treated like any other applicant when she was rehired, the employer did not violate Title VII in 1972. And if the employer did not violate Title VII in 1972 by refusing to credit respondent with back seniority, its continued adherence to that policy cannot be illegal.
14
Section 703(h) 78 Stat. 257, 42 U.S.C. § 2000e-2(h), provides:
"Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . ."
15
534 F.2d, at 1251.
1
Although the District Court dismissed respondent's complaint for lack of jurisdiction pursuant to Fed.Rule Civ.Proc. 12(b)(1), the basis for its ruling was that the complaint was time barred. Thus, the dismissal closely resembles a dismissal for failure to state a claim upon which relief can be granted, and the only issue before us is whether "it appears beyond doubt that the plaintiff can prove no set of facts in support of (her) claim which would entitle (her) to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).
2
It is, of course, true that to establish her entitlement to relief, respondent will have to prove that she was unlawfully forced to resign more than 180 days prior to filing her charge with the EEOC. But if that is sufficient to defeat her claim, then discriminatees will never be able to challenge "practices, procedures, or tests . . . (which) operate to 'freeze' the status quo of prior discriminatory employment practices," Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), even though Griggs holds that such practices are impermissible, and the legislative history of the Equal Employment Opportunity Act of 1972, 86 Stat. 103, indicates that Congress agrees, see Teamsters v. United States, 431 U.S., at 391-393, 97 S.Ct., at 1883-1884 (MARSHALL, J., concurring in part and dissenting in part). The consequence of Ms. Evans' failure to file charges after she was discharged is that she has lost her right to backpay, not her right to challenge present wrongs.
| 12
|
431 U.S. 494
97 S.Ct. 1932
52 L.Ed.2d 531
Inez MOORE, Appellant,v.CITY OF EAST CLEVELAND, OHIO.
No. 75-6289.
Argued Nov. 2, 1976.
Decided May 31, 1977.
Syllabus
Appellant lives in her East Cleveland, Ohio, home with her son and two grandsons (who are first cousins). An East Cleveland housing ordinance limits occupancy of a dwelling unit to members of a single family, but defines "family" in such a way that appellant's household does not qualify. Appellant was convicted of a criminal violation of the ordinance. Her conviction was upheld on appeal over her claim that the ordinance is unconstitutional. Appellee city contends that the ordinance should be sustained under Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 which upheld an ordinance imposing limits on the types of groups that could occupy a single dwelling unit. Held : The judgment is reversed. Pp. 498-506; (opinion of POWELL, J.), pp. 513-521 (opinion of STEVENS, J.).
Reversed.
Mr. Justice POWELL, joined by Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN, concluded that the ordinance deprived appellant of her liberty in violation of the Due Process Clause of the Fourteenth Amendment.
(a) This case is distinguishable from Belle Terre, supra, where the ordinance affected only unrelated individuals. The ordinance here expressly selects certain categories of relatives who may live together and declares that others may not, in this instance making it a crime for a grandmother to live with her grandson. P. 498-499.
(b) When the government intrudes on choices concerning family living arrangements, the usual deference to the legislature is inappropriate; and the Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. P. 499.
(c) The ordinance at best has but a tenuous relationship to the objectives cited by the city: avoiding overcrowding, traffic congestion, and an undue financial burden on the school system. Pp. 499-500.
(d) The strong constitutional protection of the sanctity of the family established in numerous decisions of this Court extends to the family choice involved in this case and is not confined within an arbitrary boundary drawn at the limits of the nuclear family (essentially a couple and their dependent children). Appropriate limits on substantive due process come not from drawing arbitrary lines but from careful "respect for the teachings of history (and) solid recognition of the basic values that underlie our society." Griswold v. Connecticut, 381 U.S. 479, 501, 85 S.Ct. 1678, 1690, 14 L.Ed.2d 510 (Harlan, J., concurring). The history and tradition of this Nation compel a larger conception of the family. Pp. 500-506.
Mr. Justice STEVENS concluded that under the limited standard of review preserved in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, and Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842, before a zoning ordinance can be declared unconstitutional it must be shown to be clearly arbitrary and unreasonable as having no substantial relation to the public health, safety, morals, or general welfare; the appellee city has failed totally to explain the need for a rule that would allow a homeowner to have grandchildren live with her if they are brothers but not if they are cousins; and that under that standard appellee city's unprecedented ordinance constitutes a taking of property without due process and without just compensation. Pp. 513-521.
Edward R. Stege, Jr., Cleveland, Ohio, for appellant.
Leonard Young, Cleveland, Ohio, for appellee.
Mr. Justice POWELL announced the judgment of the Court, and delivered an opinion in which Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN joined.
1
East Cleveland's housing ordinance, like many throughout the country, limits occupancy of a dwelling unit to members of a single family. § 1351.02.1 But the ordinance contains an unusual and complicated definitional section that recognizes as a "family" only a few categories of related individuals, § 1341.08.2 Because her family, living together in her home, fits none of those categories, appellant stands convicted of a criminal offense. The question in this case is whether the ordinance violates the Due Process Clause of the Fourteenth Amendment.3
2
* Appellant, Mrs. Inez Moore, lives in her East Cleveland home together with her son, Dale Moore Sr., and her two grandsons, Dale, Jr., and John Moore, Jr. The two boys are first cousins rather than brothers; we are told that John came to live with his grandmother and with the elder and younger Dale Moores after his mother's death.4
3
In early 1973, Mrs. Moore received a notice of violation from the city, stating that John was an "illegal occupant" and directing her to comply with the ordinance. When she failed to remove him from her home, the city filed a criminal charge. Mrs. Moore moved to dismiss, claiming that the ordinance was constitutionally invalid on its face. Her motion was overruled, and upon conviction she was sentenced to five days in jail and a $25 fine. The Ohio Court of Appeals affirmed after giving full consideration to her constitutional claims,5 and the Ohio Supreme Court denied review. We noted probable jurisdiction of her appeal, 425 U.S. 949, 96 S.Ct. 1723, 48 L.Ed.2d 193 (1976).
II
4
The city argues that our decision in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), requires us to sustain the ordinance attacked here. Belle Terre, like East Cleveland, imposed limits on the types of groups that could occupy a single dwelling unit. Applying the constitutional standard announced in this Court's leading land-use case, Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926),6 we sustained the Belle Terre ordinance on the ground that it bore a rational relationship to permissible state objectives.
5
But one overriding factor sets this case apart from Belle Terre. The ordinance there affected only unrelated individuals. It expressly allowed all who were related by "blood, adoption, or marriage" to live together, and in sustaining the ordinance we were careful to note that it promoted "family needs" and "family values." 416 U.S., at 9, 94 S.Ct., at 1541. East Cleveland, in contrast, has chosen to regulate the occupancy of its housing by slicing deeply into the family itself. This is no mere incidental result of the ordinance. On its face it selects certain categories of relatives who may live together and declares that others may not. In particular, it makes a crime of a grandmother's choice to live with her grandson in circumstances like those presented here.
6
When a city undertakes such intrusive regulation of the family, neither Belle Terre nor Euclid governs; the usual judicial deference to the legislature is inappropriate. "This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974). A host of cases, tracing their lineage to Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042 (1923), and Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573-574, 69 L.Ed. 1070 (1925), have consistently acknowledged a "private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). See, e. g., Roe v. Wade, 410 U.S. 113, 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, 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 (1961) (Harlan, J., dissenting), cf. Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). Of course, the family is not beyond regulation. See Prince v. Massachusetts, supra, 321 U.S. at 166, 64 S.Ct. at 442. But when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. See Poe v. Ullman, supra, 367 U.S., at 554, 81 S.Ct. at 1782 (Harlan, J., dissenting).
7
When thus examined, this ordinance cannot survive. The city seeks to justify it as a means of preventing overcrowding, minimizing traffic and parking congestion, and avoiding an undue financial burden on East Cleveland's school system. Although these are legitimate goals, the ordinance before us serves them marginally, at best.7 For example, the ordinance permits any family consisting only of husband, wife, and unmarried children to live together, even if the family contains a half dozen licensed drivers, each with his or her own car. At the same time it forbids an adult brother and sister to share a household, even if both faithfully use public transportation. The ordinance would permit a grandmother to live with a single dependent son and children, even if his school-age children number a dozen, yet it forces Mrs. Moore to find another dwelling for her grandson John, simply because of the presence of his uncle and cousin in the same household. We need not labor the point. Section 1341.08 has but a tenuous relation to alleviation of the conditions mentioned by the city.
III
8
The city would distinguish the cases based on Meyer and Pierce. It points out that none of them "gives grandmothers any fundamental rights with respect to grandsons," Brief for Appellee 18, and suggests that any constitutional right to live together as a family extends only to the nuclear family essentially a couple and their dependent children.
9
To be sure, these cases did not expressly consider the family relationship presented here. They were immediately concerned with freedom of choice with respect to childbearing, e. g., LaFleur, Roe v. Wade, Griswold, supra, or with the rights of parents to the custody and companionship of their own children, Stanley v. Illinois, supra, or with traditional parental authority in matters of child rearing and education. Yoder, Ginsberg, Pierce, Meyer, supra. But unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case.
10
Understanding those reasons requires careful attention to this Court's function under the Due Process Clause. Mr. Justice Harlan described it eloquently:
11
"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound.8 No formula could serve as a substitute, in this area, for judgment and restraint.
12
" . . . (T)he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, supra, 367 U.S., at 542-543, 81 S.Ct., at 1776-1777 (dissenting opinion).
13
Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court.9 That history counsels caution and restraint. But it does not counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the first convenient, if arbitrary boundary the boundary of the nuclear family.
14
Appropriate limits on substantive due process come not from drawing arbitrary lines but rather from careful "respect for the teachings of history (and), solid recognition of the basic values that underlie our society".10 Griswold v. Connecticut, 381 U.S., at 501, 85 S.Ct., at 1691 (Harlan, J., concurring).11 See generally Ingraham v. Wright, 430 U.S. 651, 672-674 and nn. 41, 42, 97 S.Ct. 1401, 1413-1414, 51 L.Ed.2d 711 (1977); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162-163, 71 S.Ct. 624, 643-644, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring); Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937 (1905) (Holmes, J., dissenting). Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition.12 It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.13
15
Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.14 Over the years millions of our citizens have grown up in just such an environment, and most, surely, have profited from it. Even if conditions of modern society have brought about a decline in extended family households, they have not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our history, that supports a larger conception of the family. Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home. Decisions concerning child rearing, which Yoder, Meyer, Pierce and other cases have recognized as entitled to constitutional protection, long have been shared with grandparents or other relatives who occupy the same household indeed who may take on major responsibility for the rearing of the children.15 Especially in times of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life. This is apparently what happened here.16
16
Whether or not such a household is established because of personal tragedy, the choice of relatives in this degree of kinship to live together may not lightly be denied by the State. Pierce struck down an Oregon law requiring all children to attend the State's public schools, holding that the Constitution "excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." 268 U.S., at 535, 45 S.Ct., at 573. By the same token the Constitution prevents East Cleveland from standardizing its children and its adults by forcing all to live in certain narrowly defined family patterns.
17
Reversed.
18
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring.
19
I join the plurality's opinion. I agree that the Constitution is not powerless to prevent East Cleveland from prosecuting as a criminal and jailing1 a 63-year-old grandmother for refusing to expel from her home her now 10-year-old grandson who has lived with her and been brought up by her since his mother's death when he was less than a year old.2 I do not question that a municipality may constitutionally zone to alleviate noise and traffic congestion and to prevent overcrowded and unsafe living conditions, in short to enact reasonable land-use restrictions in furtherance of the legitimate objectives East Cleveland claims for its ordinance. But the zoning power is not a license for local communities to enact senseless and arbitrary restrictions which cut deeply into private areas of protected family life. East Cleveland may not constitutionally define "family" as essentially confined to parents and the parents' own children.3 The plurality's opinion conclusively demonstrates that classifying family patterns in this eccentric way is not a rational means of achieving the ends East Cleveland claims for its ordinance, and further that the ordinance unconstitutionally abridges the "freedom of personal choice in matters of . . . family life (that) is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974). I write only to underscore the cultural myopia of the arbitrary boundary drawn by the East Cleveland ordinance in the light of the tradition of the American home that has been a feature of our society since our beginning as a Nation the "tradition" in the plurality's words, "of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children . . .." Ante, at 504. The line drawn by this ordinance displays a depressing insensitivity toward the economic and emotional needs of a very large part of our society.
20
In today's America, the "nuclear family" is the pattern so often found in much of white suburbia. J. Vander Zanden, Sociology: A Systematic Approach 322 (3d ed. 1975). The Constitution cannot be interpreted, however, to tolerate the imposition by government upon the rest of us of white suburbia's preference in patterns of family living. The "extended family" that provided generations of early Americans with social services and economic and emotional support in times of hardship, and was the beachhead for successive waves of immigrants who populated our cities,4 remains not merely still a pervasive living pattern, but under the goad of brutal economic necessity, a prominent pattern virtually a means of survival for large numbers of the poor and deprived minorities of our society. For them compelled pooling of scant resources requires compelled sharing of a household.5
21
The "extended" form is especially familiar among black families.6 We may suppose that this reflects the truism that black citizens, like generations of white immigrants before them, have been victims of economic and other disadvantages that would worsen if they were compelled to abandon extended, for nuclear, living patterns.7 Even in husband and wife households, 13% of black families compared with 3% of white families include relatives under 18 years old, in addition to the couple's own children.8 In black households whose head is an elderly woman, as in this case, the contrast is even more striking: 48% of such black households, compared with 10% of counterpart white households, include related minor children not offspring of the head of the household.9
22
I do not wish to be understood as implying that East Cleveland's enforcement of its ordinance is motivated by a racially discriminatory purpose: The record of this case would not support that implication. But the prominence of other than nuclear families among ethnic and racial minority groups, including our black citizens, surely demonstrates that the "extended family" pattern remains a vital tenet of our society.10 It suffices that in prohibiting this pattern of family living as a means of achieving its objectives, appellee city has chosen a device that deeply intrudes into family associational rights that historically have been central, and today remain central, to a large proportion of our population.
23
Moreover, to sanction the drawing of the family line at the arbitrary boundary chosen by East Cleveland would surely conflict with prior decisions that protected "extended" family relationships. For the "private realm of family life which the state cannot enter", recognized as protected in Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), was the relationship of aunt and niece. And in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573-574, 69 L.Ed. 1070 (1925), the protection held to have been unconstitutionally abridged was "the liberty of parents and guardians to direct the upbringing and education of children under their control" (emphasis added). See also Wisconsin v. Yoder, 406 U.S. 205, 232-233, 92 S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15 (1972). Indeed, Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), the case primarily relied upon by the appellee, actually supports the Court's decision. The Belle Terre ordinance barred only unrelated individuals from constituting a family in a single-family zone. The village took special care in its brief to emphasize that its ordinance did not in any manner inhibit the choice of related individuals to constitute a family, whether in the "nuclear" or "extended" form. This was because the village perceived that choice as one it was constitutionally powerless to inhibit. Its brief stated: "Whether it be the extended family of a more leisurely age or the nuclear family of today the role of the family in raising and training successive generations of the species makes it more important, we dare say, than any other social or legal institution. . . . If any freedom not specifically mentioned in the Bill of Rights enjoys a 'preferred position' in the law it is most certainly the family." (Emphasis supplied.) Brief for Appellants in No. 73-191, O.T.1973, p. 26. The cited decisions recognized, as the plurality recognizes today, that the choice of the "extended family" pattern is within the "freedom of personal choice in matters of . . . family life (that) is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." 414 U.S., at 639-640, 94 S.Ct., at 796.
24
Any suggestion that the variance procedure of East Cleveland's Housing Code assumes special significance is without merit. This is not only because this grandmother was not obligated to exhaust her administrative remedy before defending this prosecution on the ground that the single-family occupancy ordinance violates the Equal Protection Clause. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), the leading case in the zoning field, expressly held that one attacking the constitutionality of a building or zoning code need not first seek a variance. Id., at 386, 47 S.Ct., at 117. Rather, the matter of a variance is irrelevant also because the municipality is constitutionally powerless to abridge, as East Cleveland has done, the freedom of personal choice of related members of a family to live together. Thus, the existence of the variance procedure serves to lessen neither the irrationality of the definition of "family" nor the extent of its intrusion into family life-style decisions.
25
There is no basis for an inference other than the city's self-serving statement that a hardship variance "possibly with some stipulation(s) would probably have been granted" that this grandmother would have obtained a variance had she requested one. Indeed, a contrary inference is more supportable. In deciding to prosecute her in the first place, the city tipped its hand how discretion would have been exercised. In any event, § 1311.02 (1965) limits the discretion of the Board of Building Code Appeals to grant variances to those which are "in harmony with the general intent of such ordinance. . . ." If one of the legitimate objectives of the definition of "family" was to preserve the single (nuclear) family character of East Cleveland, then granting this grandmother a variance would be in excess of the Board's powers under the ordinance.
26
Furthermore, the very existence of the "escape hatch" of the variance procedure only heightens the irrationality of the restrictive definition, since application of the ordinance then depends upon which family units the zoning authorities permit to reside together and whom the prosecuting authorities choose to prosecute. The Court's disposition of the analogous situation in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), is instructive. There Texas argued that, despite a rigid and narrow statute prohibiting abortions except for the purpose of saving the mother's life, prosecuting authorities routinely tolerated elective abortion procedures in certain cases, such as nonconsensual pregnancies resulting from rape or incest. The Court was not persuaded that this saved the statute, THE CHIEF JUSTICE commenting that "no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion." Doe v. Bolton, 410 U.S. 179, 208, 93 S.Ct. 755, 35 L.Ed.2d 147 (concurring opinion). Similarly, this grandmother cannot be denied the opportunity to defend against this criminal prosecution because of a variance procedure that holds her family hostage to the vagaries of discretionary administrative decisions. Smith v. Cahoon, 283 U.S. 553, 562, 51 S.Ct. 582, 585, 75 L.Ed. 1264 (1931). We have now passed well beyond the day when illusory escape hatches could justify the imposition of burdens on fundamental rights. Stanley v. Illinois, 405 U.S. 645, 647-649, 92 S.Ct. 1208, 1210-1211, 31 L.Ed.2d 551 (1972); Staub v. City of Baxley, 355 U.S. 313, 319, 78 S.Ct. 277, 280, 2 L.Ed.2d 302 (1958).
27
Mr. Justice STEVENS, concurring in the judgment.
28
In my judgment the critical question presented by this case is whether East Cleveland's housing ordinance is a permissible restriction on appellant's right to use her own property as she sees fit.
29
Long before the original States adopted the Constitution, the common law protected an owner's right to decide how best to use his own property. This basic right has always been limited by the law of nuisance which proscribes uses that impair the enjoyment of other property in the vicinity. But the question whether an individual owner's use could be further limited by a municipality's comprehensive zoning plan was not finally decided until this century.
30
The holding in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, that a city could use its police power, not just to abate a specific use of property which proved offensive, but also to create and implement a comprehensive plan for the use of land in the community, vastly diminished the rights of individual property owners. It did not, however, totally extinguish those rights. On the contrary, that case expressly recognized that the broad zoning power must be exercised within constitutional limits.
31
In his opinion for the Court, Mr. Justice Sutherland fused the two express constitutional restrictions on any state interference with private property that property shall not be taken without due process nor for a public purpose without just compensation into a single standard: "(B)efore (a zoning) ordinance can be declared unconstitutional, (it must be shown to be) clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Id., at 395, 47 S.Ct., at 121 (emphasis added). This principle was applied in Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842, on the basis of a specific finding made by the state trial court that "the health, safety, convenience and general welfare of the inhabitants of the part of the city affected" would not be promoted by prohibiting the landowner's contemplated use, this Court held that the zoning ordinance as applied was unconstitutional. Id., at 188, 48 S.Ct., at 448.1
32
With one minor exception,2 between the Nectow decision in 1928 and the 1974 decision in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797, this Court did not review the substance of any zoning ordinances. The case-by-case development of the constitutional limits on the zoning power has not, therefore, taken place in this Court. On the other hand, during the past half century the broad formulations found in Euclid and Nectow have been applied in countless situations by the state courts. Those cases shed a revelatory light on the character of the single-family zoning ordinance challenged in this case.
33
Litigation involving single-family zoning ordinances is common. Although there appear to be almost endless differences in the language used in these ordinances,3 they contain three principal types of restrictions. First, they define the kind of structure that may be erected on vacant land.4 Second, they require that a single-family home be occupied only by a "single housekeeping unit."5 Third, they often require that the housekeeping unit be made up of persons related by blood, adoption, or marriage, with certain limited exceptions.
34
Although the legitimacy of the first two types of restrictions is well settled,6 attempts to limit occupancy to related persons have not been successful. The state courts have recognized a valid community interest in preserving the stable character of residential neighborhoods which justifies a prohibition against transient occupancy.7 Nevertheless, in well-reasoned opinions, the courts of Illinois,8 New York,9 New Jersey,10 California,11 Connecticut,12 Wisconsin,13 and other jurisdictions,14 have permitted unrelated persons to occupy single-family residences notwithstanding an ordinance prohibiting, either expressly or implicitly, such occupancy.
35
These cases delineate the extent to which the state courts have allowed zoning ordinances to interfere with the right of a property owner to determine the internal composition of his household. The intrusion on that basic property right has not previously gone beyond the point where the ordinance defines a family to include only persons related by blood, marriage, or adoption. Indeed, as the cases in the margin demonstrate, state courts have not always allowed the intrusion to penetrate that far. The state decisions have upheld zoning ordinances which regulated the identity, as opposed to the number, of persons who may compose a household only to the extent that the ordinances require such households to remain nontransient, single-housekeeping units.15
36
(2) There appears to be no precedent for an ordinance which excludes any of an owner's relatives from the group of persons who may occupy his residence on a permanent basis. Nor does there appear to be any justification for such a restriction on an owner's use of his property.16 The city has failed totally to explain the need for a rule which would allow a homeowner to have two grandchildren live with her if they are brothers, but not if they are cousins. Since this ordinance has not been shown to have any "substantial relation to the public health, safety, morals, or general welfare" of the city of East Cleveland, and since it cuts so deeply into a fundamental right normally associated with the ownership of residential property that of an owner to decide who may reside on his or her property it must fall under the limited standard of review of zoning decisions which this Court preserved in Euclid and Nectow. Under that standard, East Cleveland's unprecedented ordinance constitutes a taking of property without due process and without just compensation.
37
For these reasons, I concur in the Court's judgment.
38
Mr. Chief Justice BURGER, dissenting.
39
It is unnecessary for me to reach the difficult constitutional issue this case presents. Appellant's deliberate refusal to use a plainly adequate administrative remedy provided by the city should foreclose her from pressing in this Court any constitutional objections to the city's zoning ordinance. Considerations of federalism and comity, as well as the finite capacity of federal courts, support this position. In courts, as in hospitals, two bodies cannot occupy the same space at the same time; when any case comes here which could have been disposed of long ago at the local level, it takes the place that might well have been given to some other case in which there was no alternative remedy.
40
(1)
41
The single-family zoning ordinances of the city of East Cleveland define the term "family" to include only the head of the household and his or her most intimate relatives, principally the spouse and unmarried and dependent children. Excluded from the definition of "family," and hence from cohabitation, are various persons related by blood or adoption to the head of the household. The obvious purpose of the city is the traditional one of preserving certain areas as family residential communities.
42
The city has established a Board of Building Code Appeals to consider variances from this facially stringent single-family limit when necessary to alleviate "practical difficulties and unnecessary hardships" and "to secure the general welfare and (do) substantial justice. . . ." East Cleveland Codified Ordinances Code § 1311.02 (1965). The Board has power to grant variances to "(a)ny person adversely affected by a decision of any City official made in the enforcement of any (zoning) ordinance," so long as appeal is made to the Board within 10 days of notice of the decision appealed from. § 1311.03.
43
After appellant's receipt of the notice of violation, her lawyers made no effort to apply to the Board for a variance to exempt her from the restrictions of the ordinance, even though her situation appears on its face to present precisely the kind of "practical difficulties and unnecessary hardships" the variance procedure was intended to accommodate. Appellant's counsel does not claim appellant was unaware of the right to go to the Board and seek a variance, or that any attempt was made to secure relief by an application to the Board.1 Indeed, appellant's counsel makes no claim that the failure to seek a variance was due to anything other than a deliberate decision to forgo the administrative process in favor of a judicial forum.
44
(2)
45
In view of appellant's deliberate bypass of the variance procedure, the question arises whether she should now be permitted to complain of the unconstitutionality of the single-family ordinance as it applies to her. This Court has not yet required one in appellant's position to utilize available state administrative remedies as a prerequisite to obtaining federal relief; but experience has demonstrated that such a requirement is imperative if the critical overburdening of federal courts at all levels is to be alleviated. That burden has now become "a crisis of overload, a crisis so serious that it threatens the capacity of the federal system to function as it should." Department of Justice Committee on Revision of the Federal Judicial System, Report on the Needs of the Federal Courts 1 (1977). The same committee went on to describe the disastrous effects an exploding caseload has had on the administration of justice:
46
"Overloaded courts . . . mean long delays in obtaining a final decision and additional expense as court procedures become more complex in the effort to handle the rush of business. . . . (T)he quality of justice must necessarily suffer. Overloaded courts, seeking to deliver justice on time insofar as they can, necessarily begin to adjust their processes, sometimes in ways that threaten the integrity of the law and of the decisional process.
47
"District courts have delegated more and more of their tasks to magistrates. . . . Time for oral argument is steadily cut back. . . . (T)he practice of delivering written opinions is declining.
48
" . . . Courts are forced to add more clerks, more administrative personnel, to move cases faster and faster. They are losing . . . time for reflection, time for the deliberate maturation of principles." Id., at 3-4.
49
The devastating impact overcrowded dockets have on the quality of justice received by all litigants makes it essential that courts be reserved for the resolution of disputes for which no other adequate forum is available.
A.
50
The basis of the doctrine of exhaustion of administrative remedies was simply put in Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938), as
51
"the long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted."
52
Exhaustion is simply one aspect of allocation of overtaxed judicial resources. Appellant wishes to use a residential property in a manner at variance with a municipal housing code. That claim could have been swiftly and inexpensively adjudicated in a municipal administrative tribunal, without engaging cumbersome federal judicial machinery at the highest level. Of course, had appellant utilized the local administrative remedies and state judicial remedies to no avail, resort to this Court would have been available.2
53
The exhaustion principle asks simply that absent compelling circumstances and none are claimed here the avenues of relief nearest and simplest should be pursued first. This Court should now make unmistakably clear that when state or local governments provide administrative remedial procedures, no federal forum will be open unless the claimant can show either that the remedy is inadequate or that resort to those remedies is futile.
54
Utilization of available administrative processes is mandated for a complex of reasons. Statutes sometimes provide administrative procedures as the exclusive remedy. Even apart from a statutory command, it is common sense to permit the simple, speedy, and inexpensive processes of the administrative machinery to sift the facts and compile a complete record for the benefit of any reviewing courts. Exhaustion avoids interruption of the administrative process and allows application of an agency's specialized experience and the broad discretion granted to local entities, such as zoning boards. Indeed, judicial review may be seriously hampered if the appropriate agency has no chance to apply its experience, exercise its discretion or make a factual record reflecting all aspects of the problem.
55
Most important, if administrative remedies are pursued, the citizen may win complete relief without needlessly invoking judicial process. This permits the parties to resolve their disputes by relatively informal means far less costly and time consuming than litigation. By requiring exhaustion of administrative processes the courts are assured of reviewing only final agency decisions arrived at after considered judgment. It also permits agencies an opportunity to correct their own mistakes or give discretionary relief short of judicial review. Consistent failure by courts to mandate utilization of administrative remedies under the growing insistence of lawyers demanding broad judicial remedies inevitably undermines administrative effectiveness and defeats fundamental public policy by encouraging "end runs" around the administrative process.
56
It is apparent without discussion that resort to the local appeals Board in this case would have furthered these policies, particularly since the exercise of informed discretion and experience by the proper agency is the essence of any housing code variance procedure. We ought not to encourage litigants to bypass simple, inexpensive, and expeditious remedies available at their doorstep in order to invoke expensive judicial machinery on matters capable of being resolved at local levels.
B
57
The suggestion is made that exhaustion of administrative remedies is not required on issues of constitutional law. In one sense this argument is correct, since administrative agencies have no power to decide questions of federal constitutional law. But no one has a right to a federal constitutional adjudication on an issue capable of being resolved on a less elevated plane. Indeed, few concepts have had more faithful adherence in this Court than the imperative of avoiding constitutional resolution of issues capable of being disposed of otherwise. Mr. Justice Brandeis put it well in a related context, arguing for judicial restraint in Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (concurring opinion):
58
"(This) Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. . . . Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter."
59
This Court has frequently remanded cases for exhaustion "before a challenge can be made in a reviewing court of the constitutionality of the basic statute, on which the agency may not pass. . . ." K. Davis, Administrative Law Text 394 (3d ed. 1972). Indeed, exhaustion is often required precisely because there are constitutional issues present in a case, in order to avoid unnecessary adjudication of these delicate questions by giving the affected administrative agency an opportunity to resolve the matter on nonconstitutional grounds. See Christian v. New York Dept. of Labor, 414 U.S. 614, 94 S.Ct. 747, 39 L.Ed.2d 38 (1974); Public Utilities Comm'n of California v. United States, 355 U.S. 534, 539-540, 78 S.Ct. 446, 450-451, 2 L.Ed.2d 470 (1958); Allen v. Grand Central Aircraft Co., 347 U.S. 535, 553, 74 S.Ct. 745, 755, 98 L.Ed. 933 (1954); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 766-767, 67 S.Ct. 1493, 1500-1501, 91 L.Ed. 1796 (1947); Natural Gas Pipeline Co. v. Slattery, 302 U.S. 300, 309-311, 58 S.Ct. 199, 204, 82 L.Ed. 276 (1937); Fuchs, Prerequisites to Judicial Review of Administrative Agency Action, 51 Ind.L.J. 817, 883 (1976).
60
Of course, if administrative authority fails to afford relief, further exhaustion is pointless and judicial relief may be available. See Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). But so long as favorable administrative action is still possible, the policies favoring exhaustion are not mitigated in the slightest by the presence of a constitutional issue. See Christian, supra. To the extent that a nonconstitutional decision is possible only at the administrative level, those policies are reinforced. Plainly we have here precisely such a case. Appearance before the local city Board would have provided an opportunity for complete relief without forcing a constitutional ruling. The posture of the constitutional issues in this case thus provides an additional reason supporting the exhaustion requirement.
C
61
It is also said that exhaustion is not required when to do so would inflict irreparable injury on the litigant. In the present case, as in others in which a constitutional claim is asserted, injury is likely to include the "loss or destruction of substantive rights." In such a case, "the presence of constitutional questions, coupled with a sufficient showing of inadequacy of prescribed administrative relief and of threatened or impending irreparable injury flowing from delay . . ., has been held sufficient to dispense with exhausting the administrative process before instituting judicial intervention." Aircraft & Diesel Equipment Corp., supra, 331 U.S., at 773, 67 S.Ct., at 1503.
62
But there is every reason to require resort to administrative remedies "where the individual charged is to be deprived of nothing until the completion of (the administrative) proceeding." Gibson v. Berryhill, 411 U.S. 564, 574-575, 93 S.Ct. 1689, 1696, 36 L.Ed.2d 488 (1973); see Natural Gas Co., supra, 302 U.S., at 309-311, 58 S.Ct., at 203-204; Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975); Aircraft & Diesel Equipment Corp., supra, 331 U.S., at 773-774, 67 S.Ct., at 1503-1504. The focus must be on the adequacy of the administrative remedy. If the desired relief may be obtained without undue burdens, and if substantial rights are protected as the process moves forward, no harm is done by requiring the litigant to pursue and exhaust those remedies before calling on the Constitution of the United States. To do otherwise trivializes constitutional adjudication.3
63
In this case appellant need have surrendered no asserted constitutional rights in order to pursue the local administrative remedy. No reason appears why appellant could not have sought a variance as soon as notice of a claimed violation was received, without altering the living arrangements in question. The notice of violation gave appellant 10 days within which to seek a variance; no criminal or civil sanctions could possibly have attached pending the outcome of that proceeding.
64
Though timely invocation of the administrative remedy would have had no effect on appellant's asserted rights, and would have inflicted no irreparable injury, the present availability of such relief under the city ordinance is less clear. But it is unrealistic to expect a municipality to hold open its administrative process for years after legal enforcement action has begun. Appellant cannot rely on the current absence of administrative relief either as justification for the original failure to seek it, or as a reason why accountability for that failure is unreasonable. See Huffman v. Pursue, Ltd., 420 U.S. 592, 611 n. 22, 95 S.Ct. 1200, 1211, 43 L.Ed.2d 482 (1975). Any other rule would make a mockery of the exhaustion doctrine by placing no penalty on its violation.
D
65
This is not a case where inadequate or unclear or costly remedies make exhaustion inappropriate, or where the Board's position relating to appellant's claims is so fixed that further administrative review would be fruitless. There is not the slightest indication of any fixed Board policy against variances, or that a prompt application for a variance would not have been granted.4 Nor is it dispositive that the case involves criminal rather than civil penalties. The applicability of the exhaustion principle to bar challenges to the legality of prosecutions is established, even where, unlike the present case, substantial felony penalties are at stake. McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971); Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944); Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944); see McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). There is far less reason to take into account the criminal nature of the proceedings when only misdemeanor penalties are involved.
66
(3)
67
Thus, the traditional justifications offered in support of the exhaustion principle point toward application of the doctrine. But there is a powerful additional reason why exhaustion should be enforced in this case. We deal here with federal judicial review of an administrative determination by a subdivision of the State of Ohio. When the question before a federal court is whether to enforce exhaustion of state administrative remedies, interests of federalism and comity make the analysis strikingly similar to that appropriate when the question is whether federal courts should abstain from interference with ongoing state judicial proceedings.5 In both situations federal courts are being requested to act in ways lacking deference to, and perhaps harmful to, important state interests in order to vindicate rights which can be protected in the state system as well as in the federal. Cf. Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971) (Burger, C. J., dissenting). The policies underlying this Court's refusal to jeopardize important state objectives needlessly in Huffman v. Pursue, Ltd., supra; Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); and Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486, argue strongly against action which encourages evasion and undermining of other important state interests embodied in regulatory procedures.
68
When the State asserts its sovereignty through the administrative process, no less than when it proceeds judicially, "federal courts . . . should abide by standards of restraint that go well beyond those of private equity jurisprudence." Huffman, supra, 420 U.S., at 603, 95 S.Ct., at 1208; cf. Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971). A proper respect for state integrity is manifested by and, in part, dependent on, our reluctance to disrupt state proceedings even when important federal rights are asserted as a reason for doing so. Where, as here, state law affords an appropriate "doorstep" vehicle for vindication of the claims underlying those rights, federal courts should not be called upon unless those remedies have been utilized. No litigant has a right to force a constitutional adjudication by eschewing the only forum in which adequate nonconstitutional relief is possible. Appellant seeks to invoke federal judicial relief. We should now make clear that the finite resources of this Court are not available unless the litigant has first pursued all adequate and available administrative remedies.
69
The doctrine of exhaustion of administrative remedies has a long history. Though its salutary effects are undisputed, they have often been casually neglected, due to the judicial penchant of honoring the doctrine more in the breach than in the observance. For my part, the time has come to insist on enforcement of the doctrine whenever the local or state remedy is adequate and where asserted rights can be protected and irreparable injury avoided within the administrative process. Only by so doing will this Court and other federal courts be available to deal with the myriad new problems clamoring for resolution.
70
Mr. Justice STEWART, with whom Mr. Justice REHNQUIST joins, dissenting.
71
In Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 the Court considered a New York village ordinance that restricted land use within the village to single-family dwellings. That ordinance defined "family" to include all persons related by blood, adoption, or marriage who lived and cooked together as a single-housekeeping unit; it forbade occupancy by any group of three or more persons who were not so related. We held that the ordinance was a valid effort by the village government to promote the general community welfare, and that it did not violate the Fourteenth Amendment or infringe any other rights or freedoms protected by the Constitution.
72
The present case brings before us a similar ordinance of East Cleveland, Ohio, one that also limits the occupancy of any dwelling unit to a single family, but that defines "family" to include only certain combinations of blood relatives. The question presented, as I view it, is whether the decision in Belle Terre is controlling, or whether the Constitution compels a different result because East Cleveland's definition of "family" is more restrictive than that before us in the Belle Terre case.
73
The city of East Cleveland is a residential suburb of Cleveland, Ohio. It has enacted a comprehensive Housing Code, one section of which prescribes that "(t)he occupancy of any dwelling unit shall be limited to one, and only one, family ...."1 The Code defines the term "family" as follows:
74
" 'Family' means a number of individuals related to the nominal head of the household or to the spouse of the nominal head of the household living as a single housekeeping unit in a single dwelling unit, but limited to the following:
75
"(a) Husband or wife of the nominal head of the household.
76
"(b) Unmarried children of the nominal head of the household or of the spouse of the nominal head of the household, provided, however, that such unmarried children have no children residing with them.
77
"(c) Father or mother of the nominal head of the household or of the spouse of the nominal head of the household.
78
"(d) Notwithstanding the provisions of subsection (b) hereof, a family may include not more than one dependent married or unmarried child of the nominal head of the household or of the spouse of the nominal head of the household and the spouse and dependent children of such dependent child. For the purpose of this subsection, a dependent person is one who has more than fifty percent of his total support furnished for him by the nominal head of the household and the spouse of the nominal head of the household.
79
"(e) A family may consist of one individual."2
80
The appellant, Inez Moore, owns a 21/2-story frame house in East Cleveland. The building contains two "dwelling units."3 At the time this litigation began Mrs. Moore occupied one of these dwelling units with her two sons, John Moore, Sr., and Dale Moore, Sr., and their two sons, John, Jr., and Dale, Jr.4 These five persons constituted more than one family under the ordinance.
81
In January 1973, a city housing inspector cited Mrs. Moore for occupation of the premises by more than one family.5 She received a notice of violation directing her to correct the situation, which she did not do. Sixteen months passed, during which the city repeatedly complained about the violation. Mrs. Moore did not request relief from the Board of Building Code Appeals, although the Code gives the Board the explicit power to grant a variance "where practical difficulties and unnecessary hardships shall result from the strict compliance with or the enforcement of the provisions of any ordinance. . . ."6 Finally, in May 1974, a municipal court found Mrs. Moore guilty of violating the single-family occupancy ordinance. The court overruled her motion to dismiss the charge, rejecting her claim that the ordinance's definition of "family" is invalid on its face under the United States Constitution. The Ohio Court of Appeals affirmed on the authority of Village of Belle Terre v. Boraas, and the Ohio Supreme Court dismissed Mrs. Moore's appeal.
82
In my view, the appellant's claim that the ordinance in question invades constitutionally protected rights of association and privacy is in large part answered by the Belle Terre decision. The argument was made there that a municipality could not zone its land exclusively for single-family occupancy because to do so would interfere with protected rights of privacy or association. We rejected this contention, and held that the ordinance at issue "involve(d) no 'fundamental' right guaranteed by the Constitution, such as . . . the right of association, NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; . . . or any rights of privacy, cf. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Eisenstadt v. Baird, 405 U.S. 438, 453-454, 92 S.Ct. 1029, 1038-1039, 31 L.Ed.2d 319." 416 U.S., at 7-8, 94 S.Ct., at 1540.
83
The Belle Terre decision thus disposes of the appellant's contentions to the extent they focus not on her blood relationships with her sons and grandsons but on more general notions about the "privacy of the home." Her suggestion that every person has a constitutional right permanently to share his residence with whomever he pleases, and that such choices are "beyond the province of legitimate governmental intrusion," amounts to the same argument that was made and found unpersuasive in Belle Terre.
84
To be sure, the ordinance involved in Belle Terre did not prevent blood relatives from occupying the same dwelling, and the Court's decision in that case does not, therefore, foreclose the appellant's arguments based specifically on the ties of kinship present in this case. Nonetheless, I would hold, for the reasons that follow, that the existence of those ties does not elevate either the appellant's claim of associational freedom or her claim of privacy to a level invoking constitutional protection.
85
To suggest that the biological fact of common ancestry necessarily gives related persons constitutional rights of association superior to those of unrelated persons is to misunderstand the nature of the associational freedoms that the Constitution has been understood to protect. Freedom of association has been constitutionally recognized because it is often indispensable to effectuation of explicit First Amendment guarantees. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-461, 78 S.Ct. 1163, 1170-1171, 2 L.Ed.2d 1488; Bates v. Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; NAACP v. Button, 371 U.S. 415, 430-431, 83 S.Ct. 328, 337, 9 L.Ed.2d 405; Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89; Kusper v. Pontikes, 414 U.S. 51, 56-61, 94 S.Ct. 303, 307-309, 38 L.Ed.2d 260; cf. Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. But the scope of the associational right, until now, at least, has been limited to the constitutional need that created it; obviously not every "association" is for First Amendment purposes or serves to promote the ideological freedom that the First Amendment was designed to protect.
86
The "association" in this case is not for any purpose relating to the promotion of speech, assembly, the press, or religion. And wherever the outer boundaries of constitutional protection of freedom of association may eventually turn out to be, they surely do not extend to those who assert no interest other than the gratification, convenience, and economy of sharing the same residence.
87
The appellant is considerably closer to the constitutional mark in asserting that the East Cleveland ordinance intrudes upon "the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645. Several decisions of the Court have identified specific aspects of what might broadly be termed "private family life" that are constitutionally protected against state interference. See, e. g., Roe v. Wade, 410 U.S. 113, 152-154, 93 S.Ct. 705, 726-727, 35 L.Ed.2d 147 (woman's right to decide whether to terminate pregnancy); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (freedom to marry person of another race); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 319 (right to use contraceptives); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573, 574, 69 L.Ed. 1070 (parents' right to send children to private schools); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (parents' right to have children instructed in foreign language).
88
Although the appellant's desire to share a single-dwelling unit also involves "private family life" in a sense, that desire can hardly be equated with any of the interests protected in the cases just cited. The ordinance about which the appellant complains did not impede her choice to have or not to have children, and it did not dictate to her how her own children were to be nurtured and reared. The ordinance clearly does not prevent parents from living together or living with their unemancipated offspring.
89
But even though the Court's previous cases are not directly in point, the appellant contends that the importance of the "extended family" in American society requires us to hold that her decision to share her residence with her grandsons may not be interfered with by the State. This decision, like the decisions involved in bearing and raising children, is said to be an aspect of "family life" also entitled to substantive protection under the Constitution. Without pausing to inquire how far under this argument an "extended family" might extend, I cannot agree.7 When the Court has found that the Fourteenth Amendment placed a substantive limitation on a State's power to regulate, it has been in those rare cases in which the personal interests at issue have been deemed " 'implicit in the concept of ordered liberty.' " See Roe v. Wade, supra, 410 U.S., at 152, 93 S.Ct., at 726, quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. The interest that the appellant may have in permanently sharing a single kitchen and a suite of contiguous rooms with some of her relatives simply does not rise to that level. To equate this interest with the fundamental decisions to marry and to bear and raise children is to extend the limited substantive contours of the Due Process Clause beyond recognition.
90
The appellant also challenges the single-family occupancy ordinance on equal protection grounds. Her claim is that the city has drawn an arbitrary and irrational distinction between groups of people who may live together as a "family" and those who may not. While acknowledging the city's right to preclude more than one family from occupying a single-dwelling unit, the appellant argues that the purposes of the single-family occupancy law would be equally served by an ordinance that did not prevent her from sharing her residence with her two sons and their sons.
91
This argument misconceives the nature of the constitutional inquiry. In a case such as this one, where the challenged ordinance intrudes upon no substantively protected constitutional right, it is not the Court's business to decide whether its application in a particular case seems inequitable, or even absurd. The question is not whether some other ordinance, drafted more broadly, might have served the city's ends as well or almost as well. The task, rather, is to determine if East Cleveland's ordinance violates the Equal Protection Clause of the United States Constitution. And in performing that task, it must be borne in mind that "(w)e deal with economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the law be ' "reasonable, not arbitrary" ' (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989) and bears 'a rational relationship to a (permissible) state objective.' Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225." Village of Belle Terre v. Boraas, 416 U.S., at 8, 94 S.Ct., at 1540. "(E)very line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial function." Ibid. (footnote omitted).8
92
Viewed in the light of these principles, I do not think East Cleveland's definition of "family" offends the Constitution. The city has undisputed power to ordain single-family residential occupancy. Village of Belle Terre v. Boraas, supra; Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed.2d 303. And that power plainly carries with it the power to say what a "family" is. Here the city has defined "family" to include not only father, mother, and dependent children, but several other close relatives as well. The definition is rationally designed to carry out the legitimate governmental purposes identified in the Belle Terre opinion: "The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of the quiet seclusion and clean air make the area a sanctuary for people." 416 U.S., at 9, 94 S.Ct., at 1541.9
93
Obviously, East Cleveland might have as easily and perhaps as effectively hit upon a different definition of "family." But a line could hardly be drawn that would not sooner or later become the target of a challenge like the appellant's. If "family" included all of the householder's grandchildren there would doubtless be the hard case of an orphaned niece or nephew. If, as the appellant suggests, a "family" must include all blood relatives, what of longtime friends? The point is that any definition would produce hardships in some cases without materially advancing the legislative purpose. That this ordinance also does so is no reason to hold it unconstitutional, unless we are to use our power to interpret the United States Constitution as a sort of generalized authority to correct seeming inequity wherever it surfaces. It is not for us to rewrite the ordinance, or substitute our judgment for the discretion of the prosecutor who elected to initiate this litigation.10
94
In this connection the variance provisions of East Cleveland's Building Code assume special significance, for they show that the city recognized the difficult problems its ordinances were bound to create in particular cases, and provided a means to solve at least some of them. Section 1311.01 of the Code establishes a Board of Building Code Appeals. Section 1311.02 then provides, in pertinent part:
95
"The Board of Building Code Appeals shall determine all matters properly presented to it and where practical difficulties and unnecessary hardships shall result from the strict compliance with or the enforcement of the provisions of any ordinance for which it is designated as the Board of Appeals, such Board shall have the power to grant variances in harmony with the general intent of such ordinance and to secure the general welfare and substantial justice in the promotion of the public health, comfort, convenience, morals, safety and general welfare of the City."
96
The appellant did not request a variance under this section, although she could have done so. While it is impossible to know whether such a request would have been granted, her situation appears to present precisely the kind of "practical difficulties" and "unnecessary hardships" that the variance provisions were designed to accommodate.
97
This is not to say that the appellant was obligated to exhaust her administrative remedy before defending this prosecution on the ground that the single-family occupancy ordinance violates the Equal Protection Clause. In assessing her claim that the ordinance is "arbitrary" and "irrational," however, I think the existence of the variance provisions is particularly persuasive evidence to the contrary. The variance procedure, a traditional part of American land-use law, bends the straight lines of East Cleveland's ordinances, shaping their contours to respond more flexibly to the hard cases that are the inevitable byproduct of legislative linedrawing.
98
For these reasons, I think the Ohio courts did not err in rejecting the appellant's constitutional claims. Accordingly, I respectfully dissent.
99
Mr. Justice WHITE, dissenting.
100
The Fourteenth Amendment forbids any State to "deprive any person of life, liberty, or property, without due process of law," or to "deny to any person within its jurisdiction the equal protection of the laws." Both provisions are invoked in this case in an attempt to invalidate a city zoning ordinance.
101
* The emphasis of the Due Process Clause is on "process." As Mr. Justice Harlan once observed, it has been "ably and insistently argued in response to what were felt to be abuses by this Court of its reviewing power," that the Due Process Clause should be limited "to a guarantee of fairness." Poe v. Ullman, 367 U.S. 497, 540, 81 S.Ct. 1752, 1775, 6 L.Ed.2d 989 (1961) (dissenting opinion). These arguments had seemed "persuasive" to Justices Brandeis and Holmes, Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 647, 71 L.Ed. 1095 (1927), but they recognized that the Due Process Clause, by virtue of case-to-case "judicial inclusion and exclusion," Davidson v. New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616 (1878), had been construed to proscribe matters of substance, as well as inadequate procedures, and to protect from invasion by the States "all fundamental rights comprised within the term liberty." Whitney v. California, supra, 274 U.S., at 373, 47 S.Ct., at 647.
102
Mr. Justice Black also recognized that the Fourteenth Amendment had substantive as well as procedural content. But believing that its reach should not extend beyond the specific provisions of the Bill of Rights, see Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903 (1947) (dissenting opinion), he never embraced the idea that the Due Process Clause empowered the courts to strike down merely unreasonable or arbitrary legislation, nor did he accept Mr. Justice Harlan's consistent view. See Griswold v. Connecticut, 381 U.S. 479, 507, 85 S.Ct. 1678, 1694, 14 L.Ed.2d 510 (1965) (Black, J., dissenting), and id., at 499, 85 S.Ct., at 1689 (Harlan, J., concurring in judgment). Writing at length in dissent in Poe v. Ullman, supra, 367 U.S., at 543, 81 S.Ct., at 1776, Mr. Justice Harlan stated the essence of his position as follows:
103
"This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizuresS and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, see Allgeyer v. State of Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832; Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780; Booth v. Illinois, 184 U.S. 425, 22 S.Ct. 425, 46 L.Ed. 623; Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; Skinner v. Oklahoma, 316 U.S. 535, 544, 62 S.Ct. 1110, 1114, 86 L.Ed. 1655 (concurring opinion); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Cf. Skinner v. Oklahoma, supra; Bolling v. Sharpe (347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884)."
104
This construction was far too open ended for Mr. Justice Black. For him, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), as substantive due process cases, were as suspect as Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915), and Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923). In his view, Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963), should have finally disposed of them all. But neither Meyer nor Pierce has been overruled, and recently there have been decisions of the same genre Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, supra ; and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 319 (1972). Not all of these decisions purport to rest on substantive due process grounds, compare Roe v. Wade, supra, 410 U.S., at 152-153, 93 S.Ct., at 726-727, with Eisenstadt v. Baird, supra, 405 U.S., at 453-454, 92 S.Ct., at 1038-1039, but all represented substantial reinterpretations of the Constitution.
105
Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments. This is not to suggest, at this point, that any of these cases should be overruled, or that the process by which they were decided was illegitimate, or even unacceptable, but only to underline Mr. Justice Black's constant reminder to his colleagues that the Court has no license to invalidate legislation which it thinks merely arbitrary or unreasonable. And no one was more sensitive than Mr. Justice Harlan to any suggestion that his approach to the Due Process Clause would lead to judges "roaming at large in the constitutional field." Griswold v. Connecticut, supra, 381 U.S., at 502, 85 S.Ct., at 1691. No one proceeded with more caution than he did when the validity of state or federal legislation was challenged in the name of the Due Process Clause.
106
This is surely the preferred approach. That the Court has ample precedent for the creation of new constitutional rights should not lead it to repeat the process at will. The Judiciary, including this Court is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a major judicial gloss on its terms, as well as on the anticipation of the Framers, and that much of the underpinning for the broad, substantive application of the Clause disappeared in the conflict between the Executive and the Judiciary in the 1930's and 1940's, the Court should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority.
II
107
Accepting the cases as they are and the Due Process Clause as construed by them, however, I think it evident that the threshold question in any due process attack on legislation, whether the challenge is procedural or substantive, is whether there is a deprivation of life, liberty, or property. With respect to "liberty," the statement of Mr. Justice Harlan in Poe v. Ullman, quoted supra, at 504, most accurately reflects the thrust of prior decisions that the Due Process Clause is triggered by a variety of interests, some much more important than others. These interests have included a wide range of freedoms in the purely commercial area such as the freedom to contract and the right to set one's own prices and wages. Meyer v. Nebraska, supra, 262 U.S., at 399, 43 S.Ct., at 626, took a characteristically broad view of "liberty":
108
"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
109
As I have said, Meyer has not been overruled nor its definition of liberty rejected. The results reached in some of the cases cited by Meyer have been discarded or undermined by later cases, but those cases did not cut back the definition of liberty espoused by earlier decisions. They disagreed only, but sharply, as to the protection that was "due" the particular liberty interests involved. See, for example, West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937), overruling Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923).
110
Just a few years ago, we recognized that while "the range of interests protected by procedural due process is not infinite," and while we must look to the nature of the interest rather than its weight in determining whether a protected interest is at issue, the term "liberty" has been given broad meaning in our cases. Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). "In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed. See, e. g., Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694, 98 L.Ed. 884; Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551." Id., 408 U.S., at 572, 92 S.Ct., at 2707.
111
It would not be consistent with prior cases to restrict the liberties protected by the Due Process Clause to those fundamental interests "implicit in the concept of ordered liberty." Ante, at 537. Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), from which this much-quoted phrase is taken, id., at 325, 58 S.Ct., at 152, is not to the contrary. Palko was a criminal case, and the issue was thus not whether a protected liberty interest was at stake but what protective process was "due" that interest. The Court used the quoted standard to determine which of the protections of the Bill of Rights was due a criminal defendant in a state court within the meaning of the Fourteenth Amendment. Nor do I think the broader view of "liberty" is inconsistent with or foreclosed by the dicta in Roe v. Wade, 410 U.S., at 152, 93 S.Ct., at 726, and Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976). These cases at most assert that only fundamental liberties will be given substantive protection; and they may be understood as merely identifying certain fundamental interests that the Court has deemed deserving of a heightened degree of protection under the Due Process Clause.
112
It seems to me that Mr. Justice Douglas was closest to the mark in Poe v. Ullman, 367 U.S., at 517, 81 S.Ct., at 1763, when he said that the trouble with the holdings of the "old Court" was not in its definition of liberty but in its definition of the protections guaranteed to that liberty "not in entertaining inquiries concerning the constitutionality of social legislation but in applying the standards that it did." The term "liberty" is not, therefore, to be given a crabbed construction. I have no more difficulty than Mr. Justice POWELL apparently does in concluding that appellant in this case properly asserts a liberty interest within the meaning of the Due Process Clause. The question is not one of liberty vel non. Rather, there being no procedural issue at stake, the issue is whether the precise interest involved the interest in having more than one set of grandchildren live in her home is entitled to such substantive protection under the Due Process Clause that this ordinance must be held invalid.
III
113
Looking at the doctrine of "substantive" due process as having to do with the possible invalidity of an official rule of conduct rather than of the procedures for enforcing that rule, I see the doctrine as taking several forms under the cases, each differing in the severity of review and the degree of protection offered to the individual. First, a court may merely assure itself that there is in fact a duly enacted law which proscribes the conduct sought to be prevented or sanctioned. In criminal cases, this approach is exemplified by the refusal of courts to enforce vague statutes that no reasonable person could understand as forbidding the challenged conduct. There is no such problem here.
114
Second is the general principle that "liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect." Meyer v. Nebraska, 262 U.S., at 399-400, 43 S.Ct., at 627. This means-end test appears to require that any statute restrictive of liberty have an ascertainable purpose and represent a rational means to achieve that purpose, whatever the nature of the liberty interest involved. This approach was part of the substantive due process doctrine prevalent earlier in the century, and it made serious inroads on the presumption of constitutionality supposedly accorded to state and federal legislation. But with Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934), and other cases of the 1930's and 1940's such as West Coast Hotel Co. v. Parrish, supra, the courts came to demand far less from and to accord far more deference to legislative judgments. This was particularly true with respect to legislation seeking to control or regulate the economic life of the State or Nation. Even so, "while the legislative judgment on economic and business matters is 'well-nigh conclusive' . . ., it is not beyond judicial inquiry." Poe v. Ullman, supra, 367 U.S., at 518, 81 S.Ct., at 1764 (Douglas, J., dissenting). No case that I know of, including Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963), has announced that there is some legislation with respect to which there no longer exists a means-ends test as a matter of substantive due process law. This is not surprising, for otherwise a protected liberty could be infringed by a law having no purpose or utility whatsoever. Of course, the current approach is to deal more gingerly with a state statute and to insist that the challenger bear the burden of demonstrating its unconstitutionality; and there is a broad category of cases in which substantive review is indeed mild and very similar to the original thought of Munn v. Illinois, 94 U.S. 113, 132, 24 L.Ed. 77 (1877), that "if a state of facts could exist that would justify such legislation," it passes its initial test.
115
There are various "liberties," however, which require that infringing legislation be given closer judicial scrutiny, not only with respect to existence of a purpose and the means employed, but also with respect to the importance of the purpose itself relative to the invaded interest. Some interest would appear almost impregnable to invasion, such as the freedoms of speech, press, and religion, and the freedom from cruel and unusual punishments. Other interests, for example, the right of association, the right to vote, and various claims sometimes referred to under the general rubric of the right to privacy, also weigh very heavily against state claims of authority to regulate. It is this category of interests which, as I understand it, Mr. Justice STEWART refers to as " 'implicit in the concept of ordered liberty.' " Ante, at 537. Because he would confine the reach of substantive due process protection to interests such as these and because he would not classify in this category the asserted right to share a house with the relatives involved here, he rejects the due process claim.
116
Given his premise, he is surely correct. Under our cases, the Due Process Clause extends substantial protection to various phases of family life, but none requires that the claim made here be sustained. I cannot believe that the interest in residing with more than one set of grandchildren is one that calls for any kind of heightened protection under the Due Process Clause. To say that one has a personal right to live with all, rather than some, of one's grandchildren and that this right is implicit in ordered liberty is, as my Brother STEWART says, "to extend the limited substantive contours of the Due Process Clause beyond recognition." Ibid. The present claim is hardly one of which it could be said that "neither liberty nor justice would exist if (it) were sacrificed." Palko v. Connecticut, 302 U.S., at 326, 58 S.Ct., at 152.
117
Mr. Justice POWELL would apparently construe the Due Process Clause to protect from all but quite important state regulatory interests any right or privilege that in his estimate is deeply rooted in the country's traditions. For me, this suggests a far too expansive charter for this Court and a far less meaningful and less confining guiding principle than Mr. Justice STEWART would use for serious substantive due process review. What the deeply rooted traditions of the country are is arguable; which of them deserve the protection of the Due Process Clause is even more debatable. The suggested view would broaden enormously the horizons of the Clause; and, if the interest involved here is any measure of what the States would be forbidden to regulate, the courts would be substantively weighing and very likely invalidating a wide range of measures that Congress and state legislatures think appropriate to respond to a changing economic and social order.
118
Mrs. Moore's interest in having the offspring of more than one dependent son live with her qualifies as a liberty protected by the Due Process Clause; but, because of the nature of that particular interest, the demands of the Clause are satisfied once the Court is assured that the challenged proscription is the product of a duly enacted or promulgated statute, ordinance, or regulation and that it is not wholly lacking in purpose or utility. That under this ordinance any number of unmarried children may reside with their mother and that this number might be as destructive of neighborhood values as one or more additional grandchildren is just another argument that children and grandchildren may not constitutionally be distinguished by a local zoning ordinance.
119
That argument remains unpersuasive to me. Here the head of the household may house himself or herself and spouse, their parents, and any number of their unmarried children. A fourth generation may be represented by only one set of grandchildren and then only if born to a dependent child. The ordinance challenged by appellant prevents her from living with both sets of grandchildren only in East Cleveland, an area with a radius of three miles and a population of 40,000. Brief for Appellee 16 n. 1. The ordinance thus denies appellant the opportunity to live with all her grandchildren in this particular suburb; she is free to do so in other parts of the Cleveland metropolitan area. If there is power to maintain the character of a single-family neighborhood, as there surely is, some limit must be placed on the reach of the "family." Had it been our task to legislate, we might have approached the problem in a different manner than did the drafters of this ordinance; but I have no trouble in concluding that the normal goals of zoning regulation are present here and that the ordinance serves these goals by limiting, in identifiable circumstances, the number of people who can occupy a single household. The ordinance does not violate the Due Process Clause.
IV
120
For very similar reasons, the equal protection claim must fail, since it is not to be judged by the strict scrutiny standard employed when a fundamental interest or suspect classification is involved, see, e. g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), and Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), or by the somewhat less strict standard of Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977), Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), and Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). Rather, it is the generally applicable standard of McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961):
121
"The constitutional safeguard (of the Equal Protection Clause) 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."
122
See also Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Under this standard, it is not fatal if the purpose of the law is not articulated on its face, and there need be only a rational relation to the ascertained purpose.
123
On this basis, as already indicated, I have no trouble in discerning a rational justification for an ordinance that permits the head of a household to house one, but not two, dependent sons and their children.
124
Respectfully, therefore, I dissent and would affirm the judgment.
1
All citations by section number refer to the Housing Code of the city of East Cleveland, Ohio.
2
Section 1341.08 (1966) provides:
" 'Family' means a number of individuals related to the nominal head of the household or to the spouse of the nominal head of the household living as a single housekeeping unit in a single dwelling unit, but limited to the following:
"(a) Husband or wife of the nominal head of the household.
"(b) Unmarried children of the nominal head of the household or of the spouse of the nominal head of the household, provided, however, that such unmarried children have no children residing with them.
"(c) Father or mother of the nominal head of the household or of the spouse of the nominal head of the household.
"(d) Notwithstanding the provisions of subsection (b) hereof, a family may include not more than one dependent married or unmarried child of the nominal head of the household or of the spouse of the nominal head of the household and the spouse and dependent children of such dependent child. For the purpose of this subsection, a dependent person is one who has more than fifty percent of his total support furnished for him by the nominal head of the household and the spouse of the nominal head of the household.
"(e) A family may consist of one individual."
3
Appellant also claims that the ordinance contravenes the Equal Protection Clause, but it is not necessary for us to reach that contention.
4
Brief for Appellant 4, 25. John's father, John Moore, Sr., has apparently been living with the family at least since the time of trial. Whether he was living there when the citation was issued is in dispute. Under the ordinance his presence too probably would be a violation. But we take the case as the city has framed it. The citation that led to prosecution recited only that John Moore, Jr., was in the home in violation of the ordinance.
5
The dissenting opinion of THE CHIEF JUSTICE suggests that Mrs. Moore should be denied a hearing in this Court because she failed to seek discretionary administrative relief in the form of a variance, relief that is no longer available. There are sound reasons for requiring exhaustion of administrative remedies in some situations, but such a requirement is wholly inappropriate where the party is a criminal defendant in circumstances like those present here. See generally McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). Mrs. Moore defends against the State's prosecution on the ground that the ordinance is facially invalid, an issue that the zoning review board lacks competency to resolve. In any event, this Court has never held that a general principle of exhaustion could foreclose a criminal defendant from asserting constitutional invalidity of the statute under which she is being prosecuted. See, e. g., Yakus v. United States, 321 U.S. 414, 446-447, 64 S.Ct. 660, 677-678, 88 L.Ed. 834 (1944).
Moreover, those cases that have denied certain nonconstitutional defenses to criminal defendants for failure to exhaust remedies did so pursuant to statutes that implicitly or explicitly mandated such a holding. See, e. g., Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944); Yakus v. United States, supra; McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971). Because of the statutes the defendants were on notice that failure to pursue available administrative relief might result in forfeiture of a defense in an enforcement proceeding. But here no Ohio statute or ordinance required exhaustion or gave Mrs. Moore any such warning. Indeed, the Ohio courts entertained all her claims, perceiving no denigration of state administrative process in according full judicial review.
6
Euclid held that land-use regulations violate the Due Process Clause if they are "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." 272 U.S., at 395, 47 S.Ct. at 121. See Nectow v. Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928). Later cases have emphasized that the general welfare is not to be narrowly understood; it embraces a broad range of governmental purposes. See Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). But our cases have not departed from the requirement that the government's chosen means must rationally further some legitimate state purpose.
7
It is significant that East Cleveland has another ordinance specifically addressed to the problem of overcrowding. See United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 536-537, 93 S.Ct. 2821, 2826-2827, 37 L.Ed.2d 782 (1973). Section 1351.03 limits population density directly, tying the maximum permissible occupancy of a dwelling to the habitable floor area. Even if John Jr., and his father both remain in Mrs. Moore's household, the family stays well within these limits.
8
This explains why Meyer and Pierce have survived and enjoyed frequent reaffirmance, while other substantive due process cases of the same era have been repudiated including a number written, as were Meyer and Pierce, by Mr. Justice McReynolds.
9
Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). See North Dakota Pharmacy Bd. v. Snyder's Drug Stores, Inc., 414 U.S. 156, 164-167, 94 S.Ct. 407, 412-414, 38 L.Ed.2d 379 (1973); Griswold v. Connecticut, 381 U.S. 479, 514-527, 85 S.Ct. 1678, 1698-1705, 14 L.Ed.2d 510 (1965) (Black, J., dissenting); Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); Baldwin v. Missouri, 281 U.S. 586, 595, 50 S.Ct. 436, 439, 74 L.Ed. 1056 (1930) (Holmes, J., dissenting); G. Gunther, Cases and Materials on Constitutional Law 550-596 (9th ed. 1975).
10
A similar restraint marks our approach to the questions whether an asserted substantive right is entitled to heightened solicitude under the Equal Protection Clause because it is "explicitly or implicitly guaranteed by the Constitution", San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 1297, 36 L.Ed.2d 16 (1973), and whether or to what extent a guarantee in the Bill of Rights should be "incorporated" in the Due Process Clause because it is "necessary to an Anglo-American regime of ordered liberty." Duncan v. Louisiana, 391 U.S. 145, 149-150 n. 14, 88 S.Ct. 1444, 1448, 20 L.Ed.2d 491 (1968); see Johnson v. Louisiana, 406 U.S. 356, 372 n. 9, 92 S.Ct. 1620, 1639, 32 L.Ed.2d 152 (1972) (opinion of Powell, J.).
11
For a recent suggestion that the holding in Griswold is best understood in this fashion, see Pollak, Comment, 84 Yale L.J. 638, 650-653 (1975). "(I)n due course we will see Griswold as a reaffirmation of the Court's continuing obligation to test the justifications offered by the state for state-imposed constraints which significantly hamper those modes of individual fulfillment which are at the heart of a free society." Id., at 653.
12
In Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), the Court rested its holding in part on the constitutional right of parents to assume the primary role in decisions concerning the rearing of their children. That right is recognized because it reflects a "strong tradition" founded on "the history and culture of Western civilization," and because the parental role "is now established beyond debate as an enduring American tradition." Id., at 232, 92 S.Ct., at 1541-1542. In Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), the Court spoke of the same right as "basic in the structure of our society." Id., at 639, 88 S.Ct., at 1280. Griswold v. Connecticut, supra, struck down Connecticut's anticontraception statute. Three concurring Justices, relying on both the Ninth and Fourteenth Amendments, emphasized that "the traditional relation of the family" is "a relation as old and as fundamental as our entire civilization". 381 U.S., at 496, 85 S.Ct., at 1688 (Goldberg, J., joined by Warren, C. J., and BRENNAN, J., concurring). Speaking of the same statute as that involved in Griswold, Mr. Justice Harlan wrote, dissenting in Poe v. Ullman, 367 U.S. 497, 551-552, 81 S.Ct. 1752, 1781, 6 L.Ed.2d 989 (1961): "(H)ere we have not an intrusion into the home so much as on the life which characteristically has its place in the home. . . . The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right."
Although he agrees that the Due Process Clause has substantive content, Mr. Justice WHITE in dissent expresses the fear that our recourse to history and tradition will "broaden enormously the horizons of the Clause". Post, at 549-550. To the contrary, an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on the abstract formula taken from Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), and apparently suggested as an alternative. Cf. Duncan v. Louisiana, supra, 391 U.S., at 149-150 n. 14, 88 S.Ct., at 1447-1448 (rejecting the Palko formula as the basis for deciding what procedural protections are required of a State, in favor of a historical approach based on the Anglo-American legal tradition). Indeed, the passage cited in Mr. Justice WHITE's dissent as "most accurately reflect(ing) the thrust of prior decisions" on substantive due process, post, at 545, expressly points to history and tradition as the source for "supplying . . . content to this Constitutional concept". Poe v. Ullman, supra, 367 U.S., at 542, 81 S.Ct., at 1776 (Harlan, J., dissenting).
13
See generally Wilkinson & White, Constitutional Protection for Personal Lifestyles, 62 Cornell L.Rev. 563, 623-624 (1977).
14
See generally B. Yorburg, The Changing Family (1973); Bronfenbrenner, The Calamitous Decline of the American Family, Washington Post, Jan. 2, 1977, p. C1. Recent census reports bear out the importance of family patterns other than the prototypical nuclear family. In 1970, 26.5% of all families contained one or more members over 18 years of age, other than the head of household and spouse. U. S. Department of Commerce, 1970 Census of Population, vol. 1, pt. 1, Table 208. In 1960 the comparable figure was 26.1%. U. S. Department of Commerce, 1960 Census of Population, vol. 1, pt. 1, Table 187. Earlier data are not available.
15
Cf. Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), which spoke broadly of family authority as against the State, in a case where the child was being reared by her aunt, not her natural parents.
16
We are told that the mother of John Moore, Jr., died when he was less than one year old. He, like uncounted others who have suffered a similar tragedy, then came to live with the grandmother to provide the infant with a substitute for his mother's care and to establish a more normal home environment. Brief for Appellant 25.
1
This is a criminal prosecution which resulted in the grandmother's conviction and sentence to prison and a fine. Section 1345.99 permits imprisonment of up to six months, and a fine of up to $1,000, for violation of any provision of the Housing Code. Each day such violation continues may, by the terms of this section, constitute a separate offense.
2
Brief for Appellant 4. In addition, we were informed by appellant's counsel at oral argument that
"application of this ordinance here would not only sever and disrupt the relationship between Mrs. Moore and her own son, but it would disrupt the relationship that is established between young John and young Dale, which is in essence a sibling-type relationship, and it would most importantly disrupt the relationship between young John and his grandmother, which is the only maternal influence that he has had during his entire life." Tr. of Oral Arg. 16.
The city did not dispute these representations, and it is clear that this case was argued from the outset as requiring decision in this context.
3
The East Cleveland ordinance defines "family" to include, in addition to the spouse of the "nominal head of the household," the couple's childless unmarried children, but only one dependent child (married or unmarried) having dependent children, and one parent of the nominal head of the household or of his or her spouse. Thus an "extended family" is authorized in only the most limited sense, and "family" is essentially confined to parents and their own children. Appellant grandmother was charged with violating the ordinance because John, Jr., lived with her at the same time her other grandson, Dale, Jr., was also living in the home; the latter is classified as an "unlicensed roomer" authorized by the ordinance to live in the house.
4
See Report of the National Advisory Commission on Civil Disorders 278-281 (1968); Kosa & Nash, Social Ascent of Catholics, 8 Social Order 98-103 (1958); M. Novak, The Rise of the Unmeltable Ethnics 209-210 (1972); B. Yorburg, The Changing Family 106-109 (1973); Kosa, Rachiele, & Schommer, Sharing the Home with Relatives, 22 Marriage and Family Living 129 (1960).
5
See, e. g., H. Gans, The Urban Villagers 45-73, 245-249 (1962).
"Perhaps the most important or at least the most visible difference between the classes is one of family structure. The working class subculture is distinguished by the dominant role of the family circle. . . .
"The specific characteristics of the family circle may differ widely from the collateral peer group form of the West Enders, to the heirarchical type of the Irish, or to the classical three-generation extended family. . . . What matters most and distinguishes this subculture from others is that there be a family circle which is wider than the nuclear family, and that all of the opportunities, temptations, and pressures of the larger society be evaluated in terms of how they affect the ongoing way of life that has been built around this circle." Id., at 244-245 (emphasis in original).
6
Yorburg, supra, n. 4, at 108. "Within the black lower-class it has been quite common for several generations, or parts of the kin, to live together under one roof. Often a maternal grandmother is the acknowledged head of this type of household which has given rise to the term 'matrifocal' to describe lower-class black family patterns." See J. Scanzoni, The Black Family in Modern Society 134 (1971); see also Anderson, The Pains and Pleasures of Old Black Folks, Ebony 123, 128-130 (Mar. 1973). See generally E. Frazier, The Negro Family in the United States (1939); Lewis, The Changing Negro Family, in E. Ginzberg, ed., The Nation's Children 108 (1960).
The extended family often plays an important role in the rearing of young black children whose parents must work. Many such children frequently "spend all of their growing-up years in the care of extended kin. . . . Often children are 'given' to their grandparents, who rear them to adulthood. . . . Many children normally grow up in a three-generation household and they absorb the influences of grandmother and grandfather as well as mother and father." J. Ladner, Tomorrow's Tomorrow: The Black Woman 60 (1972).
7
The extended family has many strengths not shared by the nuclear family.
"The case histories behind mounting rates of delinquency, addiction, crime, neurotic disabilities, mental illness, and senility in societies in which autonomous nuclear families prevail suggest that frequent failure to develop enduring family ties is a serious inadequacy for both individuals and societies." D. Blitsten, The World of the Family 256 (1963).
Extended families provide services and emotional support not always found in the nuclear family:
"The troubles of the nuclear family in industrial societies, generally, and in American society, particularly, stem largely from the inability of this type of family structure to provide certain of the services performed in the past by the extended family. Adequate health, education, and welfare provision, particularly for the two nonproductive generations in modern societies, the young and the old, is increasingly an insurmountable problem for the nuclear family. The unrelieved and sometimes unbearably intense parent-child relationship, where childrearing is not shared at least in part by others, and the loneliness of nuclear family units, increasingly turned in on themselves in contracted and relatively isolated settings is another major problem." Yorburg, supra, n. 4, at 194.
8
R. Hill, The Strengths of Black Families 5 (1972).
9
Id., at 5-6. It is estimated that at least 26% of black children live in other than husband-wife families, "including foster parents, the presence of other male or female relatives (grandfather or grandmother, older brother or sister, uncle or aunt), male or female nonrelatives, (or with) only one adult (usually mother) present . . .. Scanzoni, supra, n. 6, at 44.
10
Novak, supra, n. 4; Hill, supra, at 5-6; N. Glazer & D. Moynihan, Beyond the Melting Pot 50-53 (2d ed. 1970); L. Rainwater & W. Yancey, The Moynihan Report and the Politics of Controversy 51-60 (1967).
1
The Court cited Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074. The statement of the rule in Zahn remains viable today:
"The most that can be said (of this zoning ordinance) is that whether that determination was an unreasonable, arbitrary or unequal exercise of power is fairly debatable. In such circumstances, the settled rule of this court is that it will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining the question." Id., at 328, 47 S.Ct., at 595.
2
Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130.
3
See, for example, the various provisions quoted or paraphrased in Brady v. Superior Court, 200 Cal.App.2d 69, 80-81 n. 3, 19 Cal.Rptr. 242, 249 n. 3 (1962).
4
As this Court recognized in Euclid, even residential apartments can have a negative impact on an area of single-family homes.
"(O)ften the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by (a single-family dwelling area) . . .. (T)he coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities, until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances." 272 U.S., at 394-395, 47 S.Ct., at 120-121.
5
Limiting use to single-housekeeping units, like limitations on the number of occupants, protects the community's interest in minimizing overcrowding, avoiding the excessive use of municipal services, traffic control, and other aspects of an attractive physical environment. See Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797.
6
See nn. 4 and 5, supra, and also Professor N. Williams' discussion of the subject in his excellent treatise on zoning law, 2 American Land Planning Law 349-361 (1974).
7
Types of group living which have not fared well under single-family ordinances include fraternities, Schenectady v. Alumni Assn., 5 App.Div.2d 14, 168 N.Y.S.2d 754 (1957); sororities, Cassidy v. Triebel, 337 Ill.App. 117, 85 N.E.2d 461 (1948); a retirement home designed for over 20 people, Kellog v. Joint Council of Women's Auxiliaries Welfare Assn., 265 S.W.2d 374 (Mo.1954); and a commercial therapeutic home for emotionally disturbed children, Browndale International v. Board of Adjustment, 60 Wis.2d 182, 208 N.W.2d 121 (1973). These institutional uses are not only inconsistent with the single-housekeeping-unit concept but include many more people than would normally inhabit a single-family dwelling.
8
In City of Des Plaines v. Trottner, 34 Ill.2d 432, 216 N.E.2d 116 (1966), the Illinois Supreme Court faced a challenge to a single-family zoning ordinance by a group of four unrelated young men who occupied a dwelling in violation of the ordinance which provided that a " 'family' consists of one or more persons each related to the other by blood (or adoption or marriage) . . .." Id., at 433, 216 N.E.2d, at 117. In his opinion for the court, Justice Schaefer wrote:
"When other courts have been called upon to define the term 'family' they have emphasized the single housekeeping unit aspect of the term, rather than the relationship of the occupants. (Citing cases.)
"In terms of permissible zoning objectives, a group of persons bound together only by their common desire to operate a single housekeeping unit,
might be thought to have a transient quality that would affect adversely the stability of the neighborhood, and so depreciate the value of other property. An ordinance requiring relationship by blood, marriage or adoption could be regarded as tending to limit the intensity of land use. And it might be considered that a group of unrelated persons would be more likely to generate traffic and parking problems than would an equal number of related persons.
"But none of these observations reflects a universal truth. Family groups are mobile today, and not all family units are internally stable and well-disciplined. Family groups with two or more cars are not unfamiliar. And so far as intensity of use is concerned, the definition in the present ordinance, with its reference to the 'respective spouses' of persons related by blood, marriage or adoption, can hardly be regarded as an effective control upon the size of family units.
"The General Assembly has not specifically authorized the adoption of zoning ordinances that penetrate so deeply as this one does into the internal composition of a single housekeeping unit. Until it has done so, we are of the opinion that we should not read the general authority that it has delegated to extend so far." Id., at 436-438, 216 N.E.2d, at 119-120.
9
In White Plains v. Ferraioli, 34 N.Y.2d 300, 357 N.Y.S.2d 449, 313 N.E.2d 756 (1974); the Court of Appeals of New York refused to apply an ordinance limiting occupancy of single-family dwellings to related individuals to a "group home" licensed by the State to care for abandoned and neglected children. The court wrote:
"Zoning is intended to control types of housing and living and not the genetic or intimate internal family relations of human beings.
"Whether a family be organized along ties of blood or formal adoptions, or be a similarly structured group sponsored by the State, as is the group home, should not be consequential in meeting the test of the zoning ordinance. So long as the group home bears the generic character of a family unit as a relatively permanent household, and is not a framework for transients or transient living, it conforms to the purpose of the ordinance . . .." Id., at 305-306, 357 N.Y.S.2d, at 452-453, 313 N.E.2d, at 758.
10
In Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 252,
281 A.2d 513, 518 (1971), the Supreme Court of New Jersey reviewed a complex single-family zoning ordinance designed to meet what the court recognized to be a pressing community problem. The community, a seaside resort, had been inundated during recent summers by unruly groups of summer visitors renting seaside cottages. To solve the problems of excessive noise, overcrowding, intoxication, wild parties and immorality that resulted from these group rentals, the community passed a zoning ordinance which prohibited seasonal rentals of cottages by most groups other than "families" related by blood or marriage. The court found that even though the problems were severe, the ordinance "preclude(d) so many harmless dwelling uses" that it became "sweepingly excessive, and therefore legally unreasonable". Ibid. The court quoted, id., at 252, 281 A.2d, at 519, the following language from Gabe Collins Realty, Inc. v. Margate City, 112 N.J.Super. 341, 349, 271 A.2d 430, 434 (1970); in a similar case as "equally applicable here":
"Thus, even in the light of the legitimate concern of the municipality with the undesirable concomitants of group rentals experienced in Margate City, and of the presumption of validity of municipal ordinances, we are satisfied that the remedy here adopted constitutes a sweepingly excessive restriction of property rights as against the problem sought to be dealt with, and in legal contemplation deprives plaintiffs of their property without due process."
The court in Kirsch Holding Co., supra, at 251 n. 6, 281 A.2d, at 518 n. 6, also quoted with approval the following statement from Marino v. Mayor and Council of Norwood, 77 N.J.Super. 587, 594, 187 A.2d 217, 221 (1966):
"Until compelled to do so by a New Jersey precedent squarely in point, this court will not conclude that persons who have economic or other personal reasons for living together as a bona fide single housekeeping unit and who have no other orientation, commit a zoning violation, with possible penal consequences, just because they are not related."
11
A California appellate court in Brady v. Superior Court, 200 Cal.App.2d, at 81, 19 Cal.Rptr., at 250, allowed use of a single-family dwelling by two unrelated students, noting:
"The erection or construction of a 'single family dwelling,' in itself, would imply that any building so constructed would contain a central
kitchen, dining room, living room, bedrooms; that is, constitute a single housekeeping unit. Consequently, to qualify as a 'single family dwelling' an erected structure need only be used as a single housekeeping unit."
12
The Supreme Court of Connecticut allowed occupancy of a large summer home by four related families because the families did "not occupy separate quarters within the house, (but used) the lodging, cooking and eating facilities (as) common to all." Neptune Park Assn. v. Steinberg, 138 Conn. 357, 360, 84 A.2d 687, 689 (1951).
13
The Supreme Court of Wisconsin, noting that "the letter killeth but the spirit giveth life," 2 Corinthians 3:6, held that six priests and two lay brothers constituted a "family" and that their use, for purely residential purposes of a single-family dwelling did not violate a single-family zoning ordinance. Missionaries of Our Lady of LaSalette v. Whitefish Bay, 267 Wis. 609, 66 N.W.2d 627 (1954).
14
Carroll v. Miami Beach, 198 So.2d 643 (Fla.App.1967); Robertson v. Western Baptist Hospital, 267 S.W.2d 395 (Ky.App.1954); Women's Kansas City St. Andrew Soc. v. Kansas City, 58 F.2d 593 (CA8 1932); University Heights v. Cleveland Jewish Orphans' Home, 20 F.2d 743 (CA6 1927).
15
Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 is consistent with this line of state authority. Chief Judge Breitel in White Plains v. Ferraioli, supra, 34 N.Y.2d, at 304-305, 357 N.Y.S.2d, at 452, 313 N.E.2d, at 758, cogently characterized the Belle Terre decision upholding a single-family ordinance as one primarily concerned with the prevention of transiency in a small, quiet suburban community. He wrote:
"The group home (in White Plains ) is not, for purposes of a zoning ordinance, a temporary living arrangement as would be a group of college students sharing a house and commuting to a nearby school (cf. Village of Belle Terre v. Boraas . . .). Every year or so, different college students would come to take the place of those before them. There would be none of the permanency of community that characterizes a residential neighborhood of private homes."
16
Of course, a community has other legitimate concerns in zoning an area for single-family use including prevention of overcrowding in residences and prevention of traffic congestion. A community which attacks these problems by restricting the composition of a household is using a means not reasonably related to the ends it seeks to achieve. See Des Plaines v. Trottner, 34 Ill.2d, at 435-436, 216 N.E.2d, at 118. To prevent overcrowding, a community can certainly place a limit on the number of occupants in a household, either in absolute terms or in relation to the available floor space. Indeed, the city of East Cleveland had on its books an ordinance requiring a minimum amount of floor space per occupant in every dwelling. See Nolden v. East Cleveland City Comm'n, 12 Ohio Misc. 205, 232 N.E.2d 421 (Com.Pl.Ct., Cuyahoga Cty. 1966). Similarly, traffic congestion can be reduced by prohibiting on-street parking. To attack these problems through use of a restrictive definition of family is, as one court noted, like "burn(ing) the house to roast the pig." Larson v. Mayor, 99 N.J.Super. 365, 374, 240 A.2d 31, 36 (1968). More narrowly, a limitation on which of the owner's grandchildren may reside with her obviously has no relevance to these problems.
1
Counsel for appellant candidly admitted at oral argument that "Mrs. Moore did not seek a variance in this case but argued that her failure to do so is constitutionally irrelevant." Tr. of Oral Arg. 20. Thus, this was not an unpublicized administrative remedy of which appellant remained unaware until after it became unavailable. Such a case would, of course, present materially different considerations. Cf. Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957).
2
Exhaustion does not deny or limit litigants' rights to a federal forum "because state administrative agency determinations do not create res judicata or collateral estoppel effects. The exhaustion of state administrative remedies postpones rather than precludes the assertion of federal jurisdiction." Comment, Exhaustion of State Administrative Remedies in Section 1983 Cases, 41 U.Chi.L.Rev. 537, 551 (1974).
3
This analysis explains those cases in which this Court has allowed persons subject to claimed unconstitutional restrictions on their freedom of expression to challenge that restriction without first applying for a permit which, if granted, would moot their claim. E. g., Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958). In each instance the permit procedure was itself an unconstitutional infringement on First Amendment rights. Thus, in those cases irreparable injury the loss or postponement of precious First Amendment rights was a concomitant of the available administrative procedure.
Similarly explicable are those cases in which challenge is made to the constitutionality of the administrative proceedings themselves. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Public Utilities Comm'n of California v. United States, 355 U.S. 534, 540, 78 S.Ct. 446, 451, 2 L.Ed.2d 470 (1958). But see Christian v. New York Dept. of Labor, 414 U.S. 614, 622, 94 S.Ct. 747, 751, 39 L.Ed.2d 38 (1974), where appellants' constitutional due process challenge to administrative procedures was deferred pending agency action. Exhaustion in those situations would similarly risk infringement of a constitutional right by the administrative process itself.
4
To be adequate for exhaustion purposes, an administrative remedy need not guarantee the litigant success on the merits in advance. What is required is a forum with the power to grant relief, capable of hearing the case with objectivity and dispatch. There is no reason to doubt that appellant would have received a fair hearing before the Board.
5
See Parisi v. Davidson, 405 U.S. 34, 37, 40 n. 6, 92 S.Ct. 815, 819, 31 L.Ed.2d 17 (1972); Public Utilities Comm'n of Ohio v. United Fuel Co., 317 U.S. 456, 63 S.Ct. 369, 87 L.Ed. 396 (1943); Natural Gas Co. v. Slattery, 302 U.S. 300, 311, 58 S.Ct. 199, 204, 82 L.Ed.2d 276 (1937); Prentis v. Atlantic Coast Line, 211 U.S. 210, 229, 29 S.Ct. 67, 70, 53 L.Ed. 150 (1908); First Nat. Bank v. Board of County Comm'rs, 264 U.S. 450, 44 S.Ct. 385, 68 L.Ed. 784 (1924); cf. Schlesinger v. Councilman, 420 U.S. 738, 756-757, 95 S.Ct. 1300, 1312-1313, 43 L.Ed.2d 591 (1975). See generally L. Jaffe, Judicial Control of Administrative Action 437-438 (1965); Fuchs, Prerequisites to Judicial Review of Administrative Agency Action, 51 Ind.L.J. 817, 861-862 (1976); Comment, Exhaustion of State Administrative Remedies Under the Civil Rights Act, 8 Ind.L.Rev. 565 (1975).
1
East Cleveland Housing Code § 1351.02 (1964).
2
East Cleveland Housing Code § 1341.08 (1966).
3
The Housing Code defines a "dwelling unit" as "a group of rooms arranged, maintained or designed to be occupied by a single family and consisting of a complete bathroom with toilet, lavatory and tub or shower facilities; one, and one only, complete kitchen or kitchenette with approved cooking, refrigeration and sink facilities; approved living and sleeping facilities. All of such facilities shall be in contiguous rooms and used exclusively by such family and by any authorized persons occupying such dwelling unit with the family." § 1341.07.
4
There is some suggestion in the record that the other dwelling unit in the appellant's house was also occupied by relatives of Mrs. Moore. A notice of violation dated January 16, 1973, refers to "Ms. Carol Moore and her son, Derik," as illegal occupants in the other unit, and at some point the illegal occupancy in one of the units allegedly was corrected by transferring one occupant over to the other unit.
5
Mrs. Moore, as the owner of the house, was responsible for compliance with the Housing Code. East Cleveland Housing Code § 1343.04 (1966). The illegal occupant, however, was identified by the city as John Moore, Jr., Mrs. Moore's grandson. The record suggests no reason why he was named, rather than Dale Moore, Jr. The occupancy might have been legal but for one of the two grandsons. One of Mrs. Moore's sons, together with his son, could have lived with Mrs. Moore under § 1341.08(d) of the Code if they were dependent on her. The other son, provided he was "unmarried," could have been included under § 1341.08(b).
6
East Cleveland Building Code § 1311.02 (1965).
7
The opinion of Mr. Justice POWELL and Mr. Justice BRENNAN's concurring opinion both emphasize the traditional importance of the extended family in American life. But I fail to understand why it follows that the residents of East Cleveland are constitutionally prevented from following what Mr. Justice BRENNAN calls the "pattern" of "white suburbia," even though that choice may reflect "cultural myopia." In point of fact, East Cleveland is a predominantly Negro community, with a Negro City Manager and City Commission.
8
The observation of Mr. Justice Holmes quoted in the Belle Terre opinion, 416 U.S., at 8 n. 5, 94 S.Ct. at 1540, bears repeating here.
"When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark." Louisville Gas Co. v. Coleman, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770 (dissenting opinion).
9
The appellant makes much of East Cleveland Housing Code § 1351.03 (1966), which prescribes a minimum habitable floor area per person; she argues that because the municipality has chosen to establish a specific density control the single-family ordinance can have no role to play. It is obvious, however, that § 1351.03 is directed not at preserving the character of a residential area but at establishing minimum health and safety standards.
10
Mr. Justice STEVENS, in his opinion concurring in the judgment, frames the issue in terms of the "appellant's right to use her own property as she sees fit." Ante, at 513. Focusing on the householder's property rights does not substantially change the constitutional analysis. If the ordinance is invalid under the Equal Protection Clause as to those classes of people whose occupancy it forbids, I should suppose it is also invalid as an arbitrary intrusion upon the property owner's rights to have them live with her. On the other hand, if the ordinance is a rational attempt to promote "the city's interest in preserving the character of its neighborhoods," Young v. American Mini Theatres, 427 U.S. 50, 71, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (opinion of Stevens, J.), it is consistent with the Equal Protection Clause and a permissible restriction on the use of private property under Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, and Nectow v. Cambridge, 227 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842.
The state cases that Mr. Justice STEVENS discusses do not answer this federal constitutional issue. For the most part, they deal with state-law issues concerning the proper statutory construction of the term "family," and they indicate only that state courts have been reluctant to extend ambiguous single-family zoning ordinances to nontransient, single-housekeeping units. By no means do they establish that narrow definitions of the term "family" are unconstitutional.
Finally, Mr. Justice STEVENS calls the city to task for failing "to explain the need" for enacting this particular ordinance. Ante, at 520. This places the burden on the wrong party.
| 78
|
431 U.S. 407
97 S.Ct. 1828
52 L.Ed.2d 465
Peggy J. CONNOR et al., Appellants,v.Cliff FINCH, Governor of Mississippi, et al. (two cases). Cliff FINCH, Governor of Mississippi, et al., Appellants, v. Peggy J. CONNOR et al. UNITED STATES, Appellant, v. Cliff FINCH, Governor of Mississippi, et al.
Nos. 76-777, 76-933 to 76-935.
Argued Feb. 28, 1977.
Decided May 31, 1977.
Syllabus
1. The Federal District Court's legislative reapportionment plan for Mississippi's Senate and House of Representatives held not to embody the equitable discretion necessary to effectuate the standards of the Equal Protection Clause of the Fourteenth Amendment in that the plan failed to meet that Clause's most elemental requirement that legislative districts be "as nearly of equal population as is practicable." Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1389-1390, 12 L.Ed.2d 506. Pp. 413-421.
(a) A court is held to stricter standards than a state legislature in devising a legislative reapportionment plan, and "unless there are persuasive justifications, a court-ordered reapportionment plan of a state legislature must avoid use of multimember districts, and, as well, must ordinarily achieve the goal of population equality with little more than de minimis variation." Chapman v. Meier, 420 U.S. 1, 26-27, 95 S.Ct. 751, 765-766, 42 L.Ed.2d 766. Here, where the District Court's plan departed from the "population equality" norm in deference to Mississippi's historic respect for the integrity of county boundaries in conjunction with legislative districts, the resulting maximum population deviations of 16.5% in the Senate districts and 19.3% in the House districts cannot be characterized as de minimis. Pp. 414-417.
(b) "With a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features," Chapman v. Meier, supra, at 26, 95 S.Ct. at 765-766, and the District Court failed here to identify any such "unique features" of the Mississippi political structure as would permit a judicial protection of county boundaries in the teeth of the judicial duty to "achieve the goal of population equality with little more than de minimis variation." Pp. 417-420.
2. With respect to the claims that the District Court plan's reapportionment of some districts impermissibly dilutes Negro voting strength, the District Court on remand should either draw legislative districts that are reasonably contiguous and compact, so as to put to rest suspicions that Negro voting strength is being purposefully diluted, or explain precisely why in a particular instance that goal cannot be accomplished. Pp. 421-426.
Reversed and remanded.
Frank R. Parker, Jackson, Miss., for Peggy J. Connor et al.
Lawrence G. Wallace, Washington, D. C., for the United States.
A. F. Summer, Atty. Gen., Jackson, Miss., Jerris Leonard, Washington, D. C., for Cliff Finch, Governor of Miss. et al.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question in this litigation concerns the constitutional validity of a legislative reapportionment plan devised by a three-judge Federal District Court for Mississippi's Senate and House of Representatives. In Nos. 76-777 and 76-935, the appellants are the Mississippi voters who originally brought this class action in the District Court. They challenge the court's entire Senate plan, and aspects of the House plan, as failing to meet the basic one-person, one-vote requirements of the Equal Protection Clause of the Fourteenth Amendment, and particularly the constitutional and equitable requirements of a court-ordered reapportionment plan.1 In No. 76-934 the appellant is the Government, an intervenor in the District Court.2 These appellants join in asserting that the District Court's plan works an impermissible dilution of Negro voting strength, and they challenge as well the District Court's decree for its failure to order special elections in all legislative districts where new or significantly stronger Negro voting majorities were created by the District Court's plan. In No. 76-933 the appellants are the state officers who were named as defendants in the District Court. These appellants assert that the District Court should have accorded greater deference to Mississippi's historic policy of respecting county boundaries and thus should have established multimember legislative districts, and they further assert that the court erred in ordering any special elections at all.
2
We do not reach all the complicated issues raised by the various appellants, because we have concluded that both the Senate and the House reapportionments ordered by the District Court fail to meet the most elemental requirement of the Equal Protection Clause in this area that legislative districts be "as nearly of equal population as is practicable." Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1389-1390, 12 L.Ed.2d 506; Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766.
3
* The effort to reapportion the Mississippi Legislature in accordance with constitutional requirements has occupied the attention of the federal courts for 12 years. This painfully protracted process of litigation began in the wake of Reynolds v. Sims, supra, when the appellants in No. 76-777 challenged in the District Court for the Southern District of Mississippi, the extreme population variances of the legislative apportionment that had been enacted by the state legislature in 1962. The District Court invalidated that plan. Connor v. Johnson, D.C.Miss., 256 F.Supp. 962.3 After waiting for an ultimately unsuccessful attempt by the legislature to enact a constitutional reapportionment, the District Court then promulgated its own plan for the 1967 quadrennial elections, relying rather extensively on multimember districting in both legislative houses to achieve substantial population equality.4 Connor v. Johnson, D.C.Miss., 265 F.Supp. 492.
4
In 1971, the state legislature enacted another apportionment; that legislation was held unconstitutional because the District Court could find no justification for the continuing substantial population variances among the various legislative districts. Connor v. Johnson, D.C.Miss., 330 F.Supp. 506. The court consequently formulated its own plan to govern the 1971 elections, continuing to rely extensively on multimember districts,5 and failing altogether to formulate a final plan with respect to the State's three largest counties Hinds, Harrison, and Jackson. Those counties instead were given interim multimember representation. In an interlocutory appeal from that order, this Court pointed out that single-member districts are preferable to large multimember districts in court-ordered reapportionment plans, and accordingly stayed the judgment of the District Court and instructed it "absent insurmountable difficulties, to devise and put into effect a single-member district plan for Hinds County."6 Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 1762, 29 L.Ed.2d 268. The District Court found itself confronted by insurmountable difficulties, however, and did not divide Hinds County into single-member districts before the 1971 election. Connor v. Johnson, 330 F.Supp. 521.
5
On direct appeal, after the 1971 elections had taken place pursuant to the District Court's plan, this Court declined to consider the prospective validity of the 1971 plan in the continued absence of a final plan redistricting Hinds, Harrison, and Jackson Counties. Connor v. Williams, 404 U.S. 549, 92 S.Ct. 656, 30 L.Ed.2d 704. Relying on the District Court's stated intention to appoint a Special Master in January 1972 to consider the subdivision of those counties into single-member districts, we vacated the judgment and remanded with directions to the District Court that "(s)uch proceedings should go forward and be promptly concluded." Id., at 551, 92 S.Ct., at 658.
6
No Special Master was appointed. In anticipation of the 1975 elections, however, the Mississippi Legislature in April 1973 enacted a new apportionment. A hearing was not held on the plaintiffs' prompt objections to that legislation until February 1975. Before the District Court reached a decision, however, the Mississippi Legislature enacted yet another apportionment almost identical to the 1971 court-ordered plan, but permanently adopting multimember districts for Hinds, Harrison, and Jackson Counties. The District Court ordered the filing of a new complaint addressing the 1975 legislation, and concluded that it was constitutional. Connor v. Waller, D.C.Miss., 396 F.Supp. 1308.7 We reversed, holding that the legislative apportionment could not be effective as law until it had been submitted and had received clearance under § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c, and that the District Court had accordingly erred in considering its constitutional validity. Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486.
7
In compliance with § 5 of the Voting Rights Act, Mississippi then submitted the 1975 legislation to the Attorney General of the United States. When he objected to the legislation,8 the District Court proceeded to formulate another temporary reapportionment plan using multimember districts for the conduct of the 1975 elections. When the District Court delayed consideration of a permanent plan for the 1979 elections, this Court allowed the filing of a petition for a writ of mandamus to compel the District Court to enter a final judgment embodying a permanent reapportionment plan for the Mississippi Legislature. Connor v. Coleman, 425 U.S. 675, 96 S.Ct. 1814, 48 L.Ed.2d 295.9 The District Court thereupon held hearings and entered a judgment adopting a final plan. See D.C.Miss., 419 F.Supp. 1072, D.C.Miss., 419 F.Supp. 1089, D.C.Miss., 422 F.Supp. 1014. We noted probable jurisdiction of these appeals challenging that judgment. 429 U.S. 1010, 97 S.Ct. 544, 50 L.Ed.2d 620; 429 U.S. 1060, 97 S.Ct. 782, 50 L.Ed.2d 775.
II
8
In approaching the task of devising a reapportionment plan for the 122-member House and 52-member Senate, the District Court announced certain guidelines to structure its analysis, drawn from previous cases in this Court and other courts and from Mississippi policy. Population variances were to be as "near de minimis as possible"; districts were to be reasonably contiguous and compact; Negro voting strength would not be minimized or canceled; and every effort would be made to maintain the integrity of county lines.10 The plaintiffs do not really challenge the criteria enunciated by the District Court, but rather argue that the court failed to abide by its criteria in putting together the reapportionment plans. The defendants, as cross-appellants, argue by contrast that the District Court went too far, and that the Mississippi policy of respecting county lines required the court to continue the utilization of multimember districts.
9
This litigation is a classic example of the proposition that " 'the federal courts are often going to be faced with hard remedial problems' in minimizing friction between their remedies and legitimate state policies." Taylor v. McKeithen, 407 U.S. 191, 194, 92 S.Ct. 1980, 1982, 32 L.Ed.2d 648, quoting Sixty-seventh Minnesota State Senate v. Beens, 406 U.S. 187, 204, 92 S.Ct. 1477, 1487, 32 L.Ed.2d 1 (dissenting opinion). The essential question here is whether the District Court properly exercised its equitable discretion in reconciling the requirements of the Constitution with the goals of state political policy.
10
Although every state reapportionment plan is fraught with its own peculiar factual difficulties, it can hardly be said that this Court has given no guidance of general applicability to a court confronted with the need to devise a legislative reapportionment plan when the state legislature has failed. We have made clear that in two important respects a court will be held to stricter standards in accomplishing its task than will a state legislature: "(U)nless there are persuasive justifications, a court-ordered reapportionment plan of a state legislature must avoid use of multimember districts, and, as well, must ordinarily achieve the goal of population equality with little more than de minimis variation." Chapman v. Meier, 420 U.S., at 26-27, 95 S.Ct., at 766.
11
These high standards reflect the unusual position of federal courts as draftsmen of reapportionment plans. We have repeatedly emphasized that "legislative reapportionment is primarily a matter for legislative consideration and determination," Reynolds v. Sims, 377 U.S., at 586, 84 S.Ct., at 1394,11 for a state legislature is the institution that is by far the best situated to identify and then reconcile traditional state policies within the constitutionally mandated framework of substantial population equality. The federal courts by contrast possess no distinctive mandate to compromise sometimes conflicting state apportionment policies in the people's name. In the wake of a legislature's failure constitutionally to reconcile these conflicting state and federal goals, however, a federal court is left with the unwelcome obligation of performing in the legislature's stead, while lacking the political authoritativeness that the legislature can bring to the task. In such circumstances, the court's task is inevitably an exposed and sensitive one that must be accomplished circumspectly, and in a manner "free from any taint of arbitrariness or discrimination." Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620.
12
Because the practice of multimember districting can contribute to voter confusion, make legislative representatives more remote from their constituents, and tend to submerge electoral minorities and overrepresent electoral majorities, this Court has concluded that single-member districts are to be preferred in court-ordered legislative reapportionment plans unless the court can articulate a "singular combination of unique factors" that justifies a different result. Mahan v. Howell, 410 U.S. 315, 333, 93 S.Ct. 979, 989, 35 L.Ed.2d 320; Chapman v. Meier, supra, 420 U.S., at 21, 95 S.Ct., at 763; East Carroll Parish School Board v. Marshall, 424 U.S. 636, 639, 96 S.Ct. 1083, 1085, 47 L.Ed.2d 296. In its final plan, and over the defendants' objection, the District Court in the present case accordingly abandoned albeit reluctantly its previous adherence to multimember districting. The defendants' unallayed reliance on Mississippi's historic policy against fragmenting counties is insufficient to overcome the strong preference for single-member districting that this Court originally announced in this very litigation. Connor v. Johnson, 402 U.S., at 692, 91 S.Ct., at 1762; Connor v. Williams, 404 U.S., at 551, 92 S.Ct., at 658.
B
13
The Equal Protection Clause requires that legislative districts be of nearly equal population, so that each person's vote may be given equal weight in the election of representatives. Reynolds v. Sims, supra. It was recognition of that fundamental tenet that motivated judicial involvement in the first place in what had been called the "political thicket" of legislative apportionment. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. The District Court's plan nevertheless departs from that norm in deference to Mississippi's historic respect for the integrity of county boundaries in conjunction with legislative districts. The result, as the District Court itself recognized, was "greater variances in population percentages in some instances than ordinarily would have been preferred." 419 F.Supp., at 1076.
14
Given the 1970 Mississippi population of 2,216,912 to be apportioned among 52 Senate districts,12 the population norm for a Senate seat if absolute population equality were to be achieved would be 42,633. As computed by the District Court,13 the Senate plan contains a maximum deviation from spopulation equality of 16.5%,14 with the largest variances occurring in District 6 (8.2% above the norm) and in District 38 (8.3% below the norm). Fourteen of the court's 52 Senate districts have variances from population equality of over 5%, plus or minus, and four of those have variances of 8% or more, plus or minus. In the House plan, with 122 seats,15 and a population norm of 18,171, there is a maximum deviation of 19.3%, with the largest variances occurring in District 5 (9.4% over the norm) and District 47 (9.9% below the norm).16 Forty-eight districts vary more than 5% either way, and 11 of those districts vary more than 8% either way.
15
Such substantial deviations from population equality simply cannot be tolerated in a court-ordered plan, in the absence of some compelling justification:
16
"With a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features.
17
". . . (A) court-ordered reapportionment plan of a state legislature . . . must ordinarily achieve the goal of population equality with little more than de minimis variation. Where important and significant state considerations rationally mandate departure from these standards, it is the reapportioning court's responsibility to articulate precisely why a plan of single-member districts with minimal population variance cannot be adopted." Chapman v. Meier, 420 U.S., at 26-27, 95 S.Ct., at 765-766 (footnote omitted).
18
The maximum population deviations of 16.5% in the Senate districts and 19.3% in the House districts can hardly be characterized as de minimis ; they substantially exceed the "under-10%" deviations the Court has previously considered to be of prima facie constitutional validity only in the context of legislatively enacted apportionments.17 See Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (7.83% maximum deviation from the population norm); White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (9.9% maximum deviation from the population norm). Hence even a legislatively crafted apportionment with deviations of this magnitude could be justified only if it were "based on legitimate considerations incident to the effectuation of a rational state policy." Reynolds v. Sims, 377 U.S., at 579, 84 S.Ct., at 1391, quoted in Mahan v. Howell, 410 U.S., at 325, 93 S.Ct., at 985.
19
As justification for both the Senate and House plans, the District Court pointed to a fairly consistent state policy of maintaining the borders of its 82 counties when allotting seats in the legislature, and to the fact that this policy is rationalized in part by the lack of legislative powers entrusted to the counties, whose legislative needs must instead be met by reliance on private bills introduced by members of the state legislature.18 But the District Court itself recognized at an earlier stage in this litigation that the policy against breaking county boundary lines is virtually impossible of accomplishment in a State where population is unevenly distributed among 82 counties, from which 52 Senators and 122 House members are to be elected. Only 11 of 82 counties have enough people to elect a Senator, and only 44 counties have enough people to elect a Representative. Connor v. Johnson, 330 F.Supp., at 509.
20
The policy of maintaining the inviolability of county lines in such circumstances, if strictly adhered to, must inevitably collide with the basic equal protection standard of one person, one vote. Indeed, Mississippi's insistent adherence to that policy resulted in the invalidation of three successive legislative apportionments as constitutionally impermissible. See Connor v. Johnson, 256 F.Supp. 962; Connor v. Johnson, 265 F.Supp. 492; Connor v. Johnson, 330 F.Supp. 506.
21
Recognition that a State may properly seek to protect the integrity of political subdivisions or historical boundary lines permits no more than "minor deviations" from the basic requirement that legislative districts must be "as nearly of equal population as is practicable." Roman v. Sincock, 377 U.S., at 710, 84 S.Ct., at 1458; Reynolds v. Sims, supra, 377 U.S., at 577, 84 S.Ct., at 1390. The question is one of degree. In Chapman v. Meier, however, it was established that the latitude in court-ordered plans for departure from the Reynolds standards in order to maintain county lines is considerably narrower than that accorded apportionments devised by state legislatures, and that the burden of articulating special reasons for following such a policy in the face of substantial population inequalities is correspondingly higher. The District Court failed here to identify any such "unique features" of the Mississippi political structure as would permit a judicial protection of county boundaries in the teeth of the judicial duty to "achieve the goal of population equality with little more than de minimis variation." Chapman v. Meier, supra, 420 U.S., at 26-27, 95 S.Ct., at 766.
22
Under the less stringent standards governing legislatively adopted apportionments, the goal of maintaining political subdivisions as districts sufficed to justify a 16.4% population deviation in the plan for the Virginia House of Delegates. Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320. But in Mahan, there was uncontradicted evidence that the legislature's plan " 'produces the minimum deviation above and below the norm, keeping intact political boundaries.' " Id., at 326, 93 S.Ct., at 986. By contrast, the plaintiffs in this case submitted to the District Court an alternative Senate plan that served the state policy against fragmenting county boundaries better than did the plan the court ultimately adopted, and also came closer to achieving districts that are "as nearly of equal population as is practicable." Reynolds v. Sims, supra, 377 U.S., at 577, 84 S.Ct., at 1390. The 19 county boundaries cut by the court plan would have been reduced to 15 in the so-called "Modified Henderson Plan" submitted by the plaintiffs; the maximum population deviation in any district would have been reduced from 16.5% to 13.66%, and the number of districts deviating by more than 5% from the population norm, plus or minus, would have been reduced from 15 to 9. As in Chapman, "our reference to the (Henderson) plan is to show that the factors cited by the District Court cannot be viewed as controlling and persuasive when other, less statistically offensive, plans already devised are feasible." 420 U.S., at 26, 95 S.Ct., at 765. See also Kilgarlin v. Hill, 386 U.S. 120, 124, 87 S.Ct. 820, 823, 17 L.Ed.2d 771; Swann v. Adams, 385 U.S. 440, 445-446, 87 S.Ct. 569, 572-573, 17 L.Ed.2d 501.
23
In the absence of a convincing justification for its continued adherence to a plan that even in state policy terms is less efficacious than another plan actually proposed, there can be no alternative but to set aside the District Court's decree for its failure to embody the equitable discretion necessary to effectuate the established standards of the Equal Protection Clause.19
III
24
Since the District Court's legislative reapportionment decree is invalid under the elementary standards of Reynolds v. Sims, we do not reach the more particularized challenges to certain aspects of that reapportionment plan made by the plaintiffs challenges based upon claims that the plan's apportionment of some districts impermissibly dilutes Negro voting strength. Swann v. Adams, supra, at 446-447, 87 S.Ct., at 573-574.20 But since the 1979 elections are on the horizon and a constitutionally permissible legislative reapportionment plan for the State of Mississippi has yet to be drawn, it is appropriate to give some further guidance to the District Court with these challenges in mind.21 Cf. Chapman v. Meier, 420 U.S., at 26, 95 S.Ct., at 765-767.
25
To support their claim of impermissible racial dilution,22 the plaintiffs point to unexplained departures from the neutral guidelines the District Court adopted to govern its formulation of a reapportionment plan departures which have the apparent effect of scattering Negro voting concentrations among a number of white majority districts. They point in particular to the District Court's failure adequately to explain its adoption of irregularly shaped districts when alternative plans exhibiting contiguity, compactness, and lower or acceptable population variances were at hand. The plaintiffs have referred us to two types of situations in which the District Court's decree fails to meet its own goal that legislative districts be reasonably contiguous and compact: in its subdivisions of large counties whose population entitles them to elect several legislative representatives to both houses, and in its aggregations of smaller counties to put together enough people to elect one legislator.
26
Hinds County exemplifies the large county problem.23 It is the site of the State's largest city, Jackson, and is the most populous Mississippi county, with a total of 214,973 residents, 84,064 of whom are Negroes. As are all Mississippi counties, Hinds is divided into five supervisory districts or "beats"; each beat elects one supervisor to sit on the Board of Supervisors, which is charged with executive and judicial local government responsibilities. The Board of Supervisors reapportioned itself in 1969, creating five oddly shaped beats that extend from the far corners of the county in long corridors that fragment the city of Jackson, where much of the Negro population is concentrated. See Kirksey v. Board of Supervisors of Hinds County, 402 F.Supp. 658 (S.D.Miss.), aff'd, 528 F.2d 536 (C.A.5), awaiting decision after rehearing en banc. The irregular shapes of the beats were assertedly justified as necessary to achieve equalization of road mileage, bridges, and land area among the districts, so as to equalize the primary responsibilities of the supervisors maintenance of the roads and bridges.24 Whatever may be the validity of those justifications for a Hinds County Board of Supervisors' apportionment first adopted in 1969, they are irrelevant to the problem of apportioning state Senate seats, whose holders will presumably concern themselves with something other than maintaining roads and bridges. The District Court nevertheless concluded that each Hinds County beat should elect one Senator.
27
The District Court did not explain its preference for the Hinds County Board of Supervisors' plan, although it did note generally that "we have had to take the Counties, Beats, and (voting) precincts as they actually are." There is, however, no longstanding state policy mandating separate representation of individual beats in the legislature.25 And there is no practical barrier that requires apportioning a large county on the basis of beat lines; Mississippi's 410 beats are in turn divided into 2,094 voting precincts, each of which is sufficiently small as the basic voting unit to allow considerable flexibility in putting together legislative districts. On this record, neither custom nor practical necessity can thus be said to justify reliance for state senatorial districting purposes upon the beats adopted by the Hinds County Board of Supervisors to govern their own election.
28
The District Court's treatment of Jefferson and Claiborne Counties illustrates a departure from its own announced standards in aggregating small counties to form a single-member legislative district. Jefferson and Claiborne Counties are contiguous counties on the western border of Mississippi. Claiborne has a total population of 10,086, of whom 7,522 are Negroes. Jefferson has a total population of 9,295 of whom 6,996 are Negroes. The plaintiffs suggested combining these two counties with Copiah County to make a compact Senate district with a 55% Negro voting-age population. Instead, and without explanation, the District Court combined Claiborne County with Lincoln County and with Beat 3 of Copiah County to make a white majority senatorial district; Jefferson County was combined with Beats 1, 2, 4, and 5 of Adams County to make an irregularly shaped senatorial district with a slight Negro voting-age majority. Compared to the plaintiffs' proposals, the District Court's senatorial districts are less compact, and in addition require the fragmentation of two counties while the plaintiffs' proposal would have fragmented none.
29
Such unexplained departures from the results that might have been expected to flow from the District Court's own neutral guidelines can lead, as they did here, to a charge that the departures are explicable only in terms of a purpose to minimize the voting strength of a minority group. The District Court could have avoided this charge by more carefully abiding by its stated intent of adopting reasonably contiguous and compact districts, and by fully explaining any departures from that goal.
30
Twelve years have passed since this litigation began, but there is still no constitutionally permissible apportionment plan for the Mississippi Legislature. It is therefore imperative for the District Court, in drawing up a new plan, to make every effort not only to comply with established constitutional standards, but also to allay suspicions and avoid the creation of concerns that might lead to new constitutional challenges.26 In view of the serious questions raised concerning the purpose and effect of the present decree's unusually shaped legislative districts in areas with concentrations of Negro population, the District Court on remand should either draw legislative districts that are reasonably contiguous and compact, so as to put to rest suspicions that Negro voting strength is being impermissibly diluted, or explain precisely why in a particular instance that goal cannot be accomplished.
31
The task facing the District Court on remand must be approached not only with great care, but with a compelling awareness of the need for its expeditious accomplishment, so that the citizens of Mississippi at long last will be enabled to elect a legislature that properly represents them.
32
Reversed and remanded.
33
Mr. Justice REHNQUIST took no part in the consideration or decision of these cases.
34
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in part and concurring in the judgment.
35
I join Parts I and II of the Court's opinion and concur in its judgment. I do not understand the Court to disapprove the District Court's decision to use county lines as districting boundaries wherever possible, even though this policy may cause a greater variation in district population than would otherwise be appropriate for a court-ordered plan. The final plan adopted in this case appears to produce even greater population disparities than necessary to effectuate the county boundary policy. Cf. Mahan v. Howell, 410 U.S. 315, 326, 93 S.Ct. 979, 986, 35 L.Ed.2d 320 (1973). This being so, the District Court should have articulated precise reasons for not adopting a more evenly apportioned plan. Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 766, 42 L.Ed.2d 766 (1975).
36
The appeals by the private parties and the United States in this case, however, were not primarily concerned with equal-population apportionment. Their more serious objections involved aspects of the District Court's plan that were claimed to dilute Negro voting power.1 The two issues are quite distinct: Equal apportionment is a majoritarian principle, but racial representation is a question of minority rights. See Smith, The Failure of Reapportionment: The Effect of Reapportionment on the Election of Blacks to Legislative Bodies, 18 How.L.J. 639 (1975). I think the Court's opinion does not sufficiently focus upon the potential dissonance between the one-person, one-vote ideal and a goal of fair representation for minorities.
37
The Court does not decide the racial dilution issue at this time, but the observations in Part III of its opinion indicate an approach that I think is not entirely appropriate. Details of districting are interrelated, and it is not helpful to look at isolated aspects of a statewide apportionment plan in order to determine whether a racial or other improperly motivated gerrymander has taken place. Districts that disfavor a minority group in one part of the State may be counterbalanced by favorable districts elsewhere. A better approach, therefore, is to examine the overall effect of the apportionment plan on the opportunity for fair representation of minority voters.
38
Statistics from the 1970 census reveal that the black voting-age population of Mississippi is 31.4%. Brief for United States 44 n. 40. Under the District Court's apportionment plan, nine of the 52 Senate districts (17.3%) and 24 of the 122 House districts (19.7%) have black majorities of the voting-age population. Id., at 66. These statistics indicate that the plan would be unlikely to provide black voters with representation in the legislature equivalent to their electoral strength.2 But I do not think that the plan improperly dilutes black voting strength just because it fails to provide proportional representation. See Whitcomb v. Chavis, 403 U.S. 124, 149-155, 91 S.Ct. 1858, 1872-1875, 29 L.Ed.2d 363 (1971).
39
The normal system of legislative apportionment in the United States is direct territorial representation by single-member districts. Such system does not normally provide electoral minorities with proportional representation in the legislature. The extent to which electoral strength is translated into legislative representation depends on a number of factors, including (1) the size of the voting group, (2) its geographical dispersion, (3) the size of the legislative districts, and (4) the way district boundaries are drawn.3 The first three factors are probably sufficient to explain the result in the present case without raising an inference that the district boundaries were drawn so as further to minimize or dilute overall black voting strength.
40
Of course, the fact that a plan seems generally to provide fair representation would not preclude a showing that a particular aspect was adopted with an impermissibly discriminatory intent. But where the only claim is based on disparate effect, then piecemeal review of an apportionment plan may well be misleading. For example, the Court's opinion suggests that the District Court may have erred in not adopting an alternative plan combining Jefferson and Claiborne Counties into a single Senate district (with Copiah County). Ante, at 424-425. But the District Court's plan does combine Jefferson and Claiborne Counties into a single House district (number 81), with a 70% black majority of the votingage population. Moreover, there is no reason to believe that the alternative Senate districting would have entailed less fragmentation of county boundaries in the overall plan. The alternative proposal would have required the formation of an additional Senate district starting with three noncontiguous areas Simpson County, Lincoln County, and part of Adams County. A complete reshuffle of the Senate districts in southwestern Mississippi thus would be necessary to implement the alternative. One can only speculate on the effect of such a reshuffle with respect to either county boundary integrity or overall black voter representation.
41
The Court's opinion also suggests that adherence to the criteria of contiguity and compactness would assure neutral districting. Ante, at 425-426. These normally are desirable characteristics of a districting plan, but I doubt that such an approach will be very effective in assuring fair representation for racial or other minority groups.4
42
A better constraint on potential gerrymandering is imposed by the use of established political boundaries. It is at this point that the goals of equal apportionment and minority representation may well conflict. To the extent that the attainment of precisely equal districts requires abandonment of longstanding political boundaries, gerrymandering is that much easier.5 Conversely, the requirement of equal apportionment places very little constraint on the possibility of a gerrymander, as the Court's discussion of the Hinds County Senate districts illustrates. Ante, at 423-424. Those districts are almost exactly equal in population, with variances from the norm ranging only from + 0.3% to + 1.3%.
43
None of my preceding comments are meant to suggest that intentional gerrymandering is a serious problem with court-ordered apportionment plans. But even a plan adopted with the purest of motives will have an unavoidable effect on the representation of various political groups in the legislature. Where there is an established policy of respecting political or natural boundaries in districting, then I believe that a court may best avoid any appearance of partisanship by using those boundaries as much as possible in its districting.
44
Mr. Justice POWELL, dissenting.
45
The Court today strikes down the entire Mississippi reapportionment plan ordered by the District Court as violative of the one-person, one-vote principles announced in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). In my view, this result which no party to this protracted litigation has urged in this Court1 is both unnecessary and erroneous. The question, as the Court correctly states, is "whether the District Court properly exercised its equitable discretion in reconciling the requirements of the Constitution with the goals of state political policy." Ante, at 414. Although I believe further proceedings are necessary with respect to certain aspects of the District Court's plan, I find no basis on this record for holding that the District Court abused the broad discretion that it necessarily must exercise in cases of this kind.
46
In my view the District Court's overall plan is sound, and does not impermissibly depart from the one-person, one-vote requirements of our prior cases. The court's plan contains maximum deviations from absolute population equality of 16.5% (Senate) and 19.3% (House). In Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), we sustained a legislative reapportionment plan for the Virginia House of Delegates in which the maximum variation was 16.4%. We held that this deviation was justified by the State's policy of maintaining the integrity of political subdivision lines, id., at 325, 93 S.Ct., at 985; see Davis v. Mann, 377 U.S. 678, 686, 84 S.Ct. 1441, 1445, 12 L.Ed.2d 609 (1964). The same policy justifies the comparable deviations in the District Court's plan for Mississippi, a State which also has a tradition of respecting the integrity of political subdivision lines in drawing legislative districts.
47
To be sure, the plan before us was ordered by a federal court, and we have said that such a plan must be examined more critically than one adopted by a state legislature. Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975). But the theory underlying that more demanding standard of review is that legislative plans are likely to reflect a State's political policy and the will of its people more accurately than a decision by unelected federal judges. Where the deviations in a court's plan are attributable, as in this case, to an explicit policy of deference to the State's traditional district lines, the distinction becomes relatively unimportant.2 And where the deviations are also accepted by all parties to the litigation, as is true of the basic House plan, the distinction seems wholly irrelevant.
48
The issue primarily presented and argued in these appeals is whether the District Court plan impermissibly dilutes Negro voting strength. I agree generally with Mr. Justice BLACKMUN's concurring opinion on this aspect of the case. I find no evidence in this record to suggest that the plan which assures substantial Negro representation in the State, Brief for United States 22, has had the overall effect of diluting the Negro vote.
49
The United States and the private appellants, however, have called our attention to a number of specific concentrations of Negro voters in the State which are fragmented among two or more districts by the court's plan. The United States focuses in particular on six counties for which it claims that alternative district lines proposed by the parties would preserve an appropriate reconciliation of competing interests -- population equality, geographic compactness, adherence to traditional political boundaries -- without fragmenting the Negro vote.3 Because the District Court failed to explain why it rejected the proposed alternatives, these contentions are virtually impossible to review. Accordingly, I would remand the case to the District Court for further findings comparing in detail the challenged lines in the court's plan to those proposed by the United States. But I would limit the scope of the remand to the districts specifically challenged in this appeal by the United States for unnecessary racial dilution and to the districts which would require readjustment under the alternatives the United States has proposed.4 In all other respects I would affirm the judgment of the District Court.5
1
These appellants also challenge the District Court's failure to award them reasonable attorneys' fees, as authorized by § 402 of the 1975 amendments to the Voting Rights Act of 1965, 42 U.S.C. § 1973l (e) (1970 ed., Supp. V), and the recent Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988 (1976 ed.). Because we reverse and remand this cause for further proceedings, we do not resolve this problem, but simply instruct the District Court to make a determination of this question at an appropriate time in the proceedings on remand.
2
The appellants in Nos. 76-777, 76-934, and 76-935 will sometimes hereinafter be referred to as the plaintiffs.
3
Under the 1962 regime a majority of the House of Representatives could have been elected by some 40% of the State's voters; a majority of the Senate could have been elected by less than 38% of them. Connor v. Johnson, 256 F.Supp., at 976-977.
4
Thirty-four of the 52 House districts and 10 of the 36 Senate districts were multimember districts under this court plan.
5
Most of the House districts and almost half of the Senate districts were constituted as multimember districts under this plan. Thus 52 Senators were to be elected from 33 senatorial districts, and 122 Members of the House of Representatives were to be elected from 46 House districts. Connor v. Johnson, 330 F.Supp., at 509-516.
6
This Court was advised at that time that acceptable single-member district plans had been worked out for Hinds County, but not for Harrison or Jackson County. Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268.
7
The 1975 legislative plan contained 14 multimember districts for the Senate, and 24 multimember districts and 34 floterial districts and subdistricts for the House. (Floterial districts are a form of multimember districting in which one or more legislators are elected from subdistricts and one or more legislators are elected districtwide.) Connor v. Waller, 396 F.Supp., at 1324-1325, 1333-1339.
8
On June 10, 1975, the Attorney General objected to the 1975 Acts reapportioning the House and Senate on the ground that Mississippi had failed to show that the legislation did not have the purpose and would not have the effect of denying or abridging the right to vote on account of race. The United States was subsequently permitted to intervene in the District Court as a party plaintiff. Connor v. Finch, D.C.Miss., 419 F.Supp. 1089, 1090-1091.
9
This Court directed the District Court promptly to bring this case to trial and not to await this Court's decisions in other cases raising reapportionment questions. On the assumption that the District Court would hold a hearing within 30 days of the entry of this Court's order, we deferred consideration of the petition for writ of mandamus until June 17, 1976.
10
The District Court postulated two specific guidelines on county boundary integrity:
"1. If a county has more than enough population for the election of a Representative or Senator, then there shall be one complete district within that county, thus at least one Senator or Representative will be chosen solely by that county. In practical effect this will largely preserve the integrity of county boundaries and conform, to a degree, with the state policy on that subject, Mahan v. Howell (410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320).
"2. Except where two or more districts may properly be set up within the same county as authorized by Mississippi Constitution, Section 254, no county will be split into more than two segments." (Emphasis in original.) Connor v. Finch, 419 F.Supp. 1072, 1076.
11
See also Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 766, 42 L.Ed.2d 766; Connor v. Williams, 404 U.S. 549, 552 n. 4, 92 S.Ct. 656, 658, 30 L.Ed.2d 704; Burns v. Richardson, 384 U.S. 73, 85, 86 S.Ct. 1286, 1293, 16 L.Ed.2d 376.
12
Miss.Const., Art. 13, § 255.
13
In gauging the total population deviations from the House and Senate norms, we accept the District Court's calculation of district populations and population deviations. As is not unusual in cases such as this, there is considerable controversy among the parties as to what the proper population figures are. The census is itself at best an approximate estimate of a State's population at a frozen moment in time. Because it is taken by census tract rather than along supervisory district or voting precinct lines, relevant population figures for these political districts have to be extrapolated. That process is complicated by the recognition that major shifts in population and in voting precinct lines have occurred since the 1970 census, and by the fact that proportionally more Negroes than whites are ineligible to vote because of age.
We need not "enter this imbroglio of mathematical manipulation," but instead "confine our consideration to the figures actually found by the court." Mahan v. Howell, 410 U.S. 315, 319 n. 6, 93 S.Ct. 979, 982 n. 6, 35 L.Ed.2d 320. See also Burns v. Richardson, supra, 384 U.S., at 91-93, 86 S.Ct., at 1296-1297. On remand, however, to avoid the substantial confusion that characterizes the record now before us, the District Court should explain the genesis of the population figures on which it relies.
14
We note that the appellants in No. 76-935 assert that simple mathematical error resulted in understating the population variance in Senate District 29. According to their figures, that district has a variance of 9.96%, resulting in a maximum deviation in the court's Senate plan of 18.29%.
15
Miss.Const., Art. 13, § 254.
16
The District Court originally calculated the total variance at 18.5%, but its December 21, 1976, order, amending its previous judgment, increased the variance in District 47 from -9.1% to -9.9%.
17
The Court refused to assume in Chapman v. Meier that even a 5.95% deviation from the norm would necessarily satisfy the high standards required of court-ordered plans.
18
As justification for the high population deviations in the House plan, the District Court also "emphasize(d) that the exceedingly low 1% population norm of 181 persons has made our task . . . far more difficult" i. e., the small population of the House districts means that any underinclusion or overinclusion of 181 persons in a district results in an incremental 1% deviation from the population norm for that district. 419 F.Supp., at 1112. The 1% population norm in the sparsely populated State of North Dakota was 121, but the Court did not consider that a "legitimate basis for a departure from the goal of equality" in Chapman v. Meier, 420 U.S., at 24, 95 S.Ct., at 765. Instead we recognized that "each individual vote may be more important to the result of an election" in such circumstances, and concluded that "particular emphasis should be placed on establishing districts with as exact population equality as possible." Id., at 25, 95 S.Ct., at 765.
19
The appellants in No. 76-935 challenged the Senate reapportionment as a whole under Reynolds v. Sims. They did not make a blanket challenge to the entire House plan under the Reynolds v. Sims doctrine, since they viewed it as "go(ing) a long way toward alleviating the dilution of black voting strength present in the 1971 and 1975 . . . court-ordered House plans." They did, however, challenge several districts in the House plan as excessively malapportioned (arguing, for example, that the plan created a total deviation of 18.2% for four House districts in Washington and Issaquena Counties), and all of the plaintiffs supported their claims of fragmentation of Negro voting strength by pointing to significant deviations from the House population norm.
In the context of a court-ordered plan that results in the sort of systemic violation revealed by the figures in this record, it is hardly appropriate to confine our scrutiny to particularly egregious, but localized examples of violations specifically relied on by the parties. And even if the constitutional validity of the entire court-ordered House plan could not appropriately be viewed as an issue implicitly raised by the parties, this Court has the authority and the duty in exceptional circumstances to notice federal-court errors to which no exception has been taken, when they "seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555, quoted in Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 1288, 8 L.Ed.2d 798. See also Blonder-Tongue Laboratories v. University Foundation, 402 U.S. 313, 320 n. 6, 91 S.Ct. 1434, 1438, 28 L.Ed.2d 788; Sibbach v. Wilson, 312 U.S. 1, 16, 61 S.Ct. 422, 427-428, 85 L.Ed. 479; R. Stern & E. Gressman, Supreme Court Practice § 6.37 (4th ed. 1969).
20
The plaintiffs also argue that special elections should have been ordered in a number of House and Senate districts to remedy the serious deficiencies in the 1975 court-ordered plan under which the present state legislature was elected. These arguments, too, become moot in view of the invalidity of the entire reapportionment decree now before us.
21
The plaintiffs assert that the reapportionment decree, if found to dilute Negro voting strength, is unconstitutional under the Fourteenth and Fifteenth Amendments. Our limited comments here, however, are addressed only to the question of the District Court's appropriate exercise of its discretion in remedying the Mississippi Legislature's failure to enact a valid apportionment under the equal protection standards established by Reynolds v. Sims. Cf. Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (Brandeis, J., concurring).
22
See, e. g., White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314; Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363; Abate v. Mundt, 403 U.S. 182, 184 n. 2, 91 S.Ct. 1904, 1906, 29 L.Ed.2d 399; Burns v. Richardson, 384 U.S., at 88-89, 86 S.Ct., at 1294-1295; Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401.
23
The textual examples are meant to be illustrative rather than an exhaustive catalogue of possible deficiencies in the District Court's plan. Similar criticisms could possibly be made of the districting contours in a number of other counties.
24
The validity of these justifications for apportionment of the supervisor beats is currently under attack in Kirksey v. Board of Supervisors of Hinds County, pending in the Court of Appeals for the Fifth Circuit after reargument en banc. Our discussion of the Hinds County Senate districting problem is not to be understood as pretermitting that court's consideration of the county supervisor districting issue raised in the Kirksey litigation.
25
Unlike counties with "boundaries . . . fixed by statute for generations," beats are not units of state government, and their boundaries are frequently changed by the Boards of Supervisors. According to the District Court: "Beat lines generally follow governmental land lines as laid down by section, township, and range in other words invisible to all, and unknown to most. It is a rare individual who knows where a beat line is at any given point . . . ." Connor v. Johnson, 330 F.Supp., at 518.
26
The District Court did take a substantial step forward in its final decree by eliminating multimember districts. In setting aside this decree we do not mean to obscure the significance of that advance. Although the court's order to hold special elections in two districts to make more immediately available the fruits of its decree cannot be affirmed in the face of our judgment today that vacates the entire decree, the District Court will retain the power to order such special elections on remand as the circumstances may require or permit.
1
In fact, several of the districting alternatives proposed by these appellants as a means of improving black representation also would have involved greater population disparities than the plan adopted by the District Court. See, e. g., Brief for United States 49a (Hinds County Senate districts); id., at 55a (Warren County House districts); Brief for Private Appellants 45-46 (Adams County House districts).
2
The racial-dilution challenge in this case is predicated on the common but questionable assumption that voting will take place along racial lines, and thus that blacks receive effective representation only in districts where they compose a majority of the voting-age population. See Brief for Private Appellants 28-36; Brief for United States 33-59. Such an assumption perhaps would be appropriate in situations where blacks continue to be excluded from the political process. See White v. Regester, 412 U.S. 755, 765-770, 93 S.Ct. 2332, 2339-2340, 37 L.Ed.2d 314 (1973). Separate representation by race, however, is certainly not an optimal solution and at best can provide only a temporary, expedient remedy.
3
See generally D. Rae, The Political Consequences of Electoral Laws (1967); Tufte, The Relationship between Seats and Votes in Two-Party Systems, 67 Am.Pol.Sci.Rev. 540 (1973).
4
It is not clear that workable standards of evaluating compactness are available, and in any event a requirement of compactness would not necessarily promote minority group representation. See R. Dixon, Democratic Representation 460-461 (1968); Mayhew, Congressional Representation: Theory and Practice in Drawing the Districts, in N. Polsby, ed., Reapportionment in the 1970s, pp. 253-255 (1971).
5
Reynolds v. Sims, 377 U.S. 533, 578-579, 84 S.Ct. 1362, 1390-1391, 12 L.Ed.2d 506 (1964); Wells v. Rockefeller, 394 U.S. 542, 551-552, 89 S.Ct. 1234, 1240, 22 L.Ed.2d 535 (1969) (Harlan, J., dissenting); id., at 554-555, 89 S.Ct., at 1242 (White, J., dissenting). See Baker, Gerrymandering: Privileged Sanctuary or Next Judicial Target?, in N. Polsby, ed., Reapportionment in the 1970s, pp. 137-138 (1971); Elliott, The Political Consequences of Reapportionment, 37 U.Chi.L.Rev. 474, 481-490 (1970).
1
The United States, the appellant in No. 76-934, does not challenge the plan as failing to meet the one-person, one-vote requirement of the Equal Protection Clause. The private appellants challenge only the Senate plan and limited aspects of the House plan on this basis.
2
We noted in Chapman : "It is far from apparent that North Dakota policy currently requires or favors strict adherence to political lines." 420 U.S., at 25, 95 S.Ct., at 765.
3
The counties and challenged districts are as follows: Hinds (Senate Districts 31-35); Warren (House Districts 53-55); Forrest (House Districts 103-106); Washington (House Districts 32-35), and Claiborne and Jefferson (Senate Districts 37-38). Brief for United States 74-92, 45a-71a.
4
The alternative proposed for Warren County (House Districts 53-55) would require redistricting in House Districts 47 and 56. Id., at 54a n.* The alternative proposed in Claiborne and Jefferson Counties (Senate Districts 37 and 38) apparently would require readjustment in the surrounding counties. Id., at 68a-71a.
As the Court notes, the validity of the apportionment in Hinds County is now pending in the Court of Appeals for the Fifth Circuit after rehearing en banc. Kirksey v. Board of Supervisors of Hinds County, No. 75-2212. I agree that we should not pretermit that court's consideration of issues before it. If the Fifth Circuit in Kirksey were to order the supervisory districts to be redrawn, the District Court necessarily would have to re-examine the corresponding legislative districts in its apportionment plan.
Although the private appellants challenge additional aspects of the court's Senate plan for unnecessary racial dilution, they do not offer alternatives limited to the affected districts in the court's plan but instead urge that the entire plan be set aside. Because I believe the basic plan is sound for the reasons stated in text, I would reject these additional challenges. The private appellants also challenge the court's House plan for Adams County, claiming that the court should have adopted a district with a larger Negro voting-age population (59.5%) than that which obtains in District 89 (50.7%). In my view this contention is without merit.
5
The Court's disposition of the case makes it unnecessary to discuss the further issue of special elections.
| 12
|
431 U.S. 395
97 S.Ct. 1891
52 L.Ed.2d 453
EAST TEXAS MOTOR FREIGHT SYSTEM INC., Petitioner,v.Jesse RODRIGUEZ et al. TEAMSTERS LOCAL UNION 657, Petitioner, v. Jesse RODRIGUEZ et al. SOUTHERN CONFERENCE OF TEAMSTERS, Petitioner, v. Jesse RODRIGUEZ et al.
Nos. 75-718, 75-651 and 75-715.
Argued Jan. 10-11, 1977.
Decided May 31, 1977.
Syllabus
Respondents, Mexican-Americans, brought suit against petitioners, their unions and their employer, a common carrier that employs city and over-the-road ("line") drivers, claiming that their rejection for line-driver jobs under the company's "no-transfer" policy in conjunction with the discriminatory effect of the seniority system applicable under collective-bargaining agreements between the company and the unions was racially and ethnically discriminatory and violated Title VII of the Civil Rights Act of 1964. Although respondents alleged that the case was a class action brought on behalf of the named plaintiffs and all Negroes and Mexican-Americans who had been denied equal employment opportunities with the company because of their race or national origin, they did not make a pretrial motion pursuant to Fed.Rule Civ.Proc. 23 to have the action certified as a class action, and the District Court made no such certification. Respondents had stipulated before trial that they had not been discriminated against when they were first hired and that the only issue before the court was whether the company's failure to consider respondents' line-driver applications violated Title VII, and their evidence and arguments at trial were confined to respondents' individual claims, with petitioners' defense showing that respondents were not qualified to be line drivers. The District Court following trial dismissed the class-action allegations (stressing respondents' failure to move for class certification, their focus on individual claims, the lack of evidence, the stipulation, and the fact that a large majority of the union membership had recently rejected a proposal for the merger of city-driver and line-driver seniority lists with free transfer between jobs), and the individual claims (ruling that the challenged policies were neutrally applied, were proper business policies, and that respondents lacked line-driver qualifications). The Court of Appeals reversed, discounting respondents' failure to move for certification ("a responsibility (that) falls to the court"), and the court itself certifying the class, after which it found classwide company and union liability on the basis of the proof adduced at trial. The trial court lack-of-qualification finding was not disturbed, the Court of Appeals ruling only that it was "premature" because each plaintiff as a member of the class would be entitled to have his application considered on the merits when future line-driver vacancies arose. Held: The Court of Appeals plainly erred in certifying a class action and in imposing classwide liability on petitioners. Pp. 403-406.
(a) The trial court proceedings made clear that respondents were not members of the class of discriminatees that they purported to represent, since there was abundant evidence that they were unqualified to be line drivers, which, in addition to the stipulation of each named plaintiff that he had not been discriminated against with respect to his initial employment, made them ineligible to represent a class of persons who did allegedly suffer injury or to attack the no-transfer rule and seniority system on the ground that these practices perpetuated past discrimination and locked minorities into the less desirable jobs to which they had been discriminatorily assigned. Pp. 403-404.
(b) The named plaintiffs' failure to protect the interest of class members by moving for certification strongly implies the inadequacy of the representation class members might receive. P. 405.
(c) The union vote against merging city-driver and line-driver seniority lists was at odds with respondents' demand for such a merger. P. 405.
5 Cir., 505 F.2d 40 (Nos. 75-718, 75-651, and 75-715); 5 Cir., 505 F.2d 66 and 69 (Nos. 75-651 and 75-715), vacated and remanded.
Vilma S. Martinez, San Francisco, Cal., for respondents Rodriguez et al.
Ruben Montemayor, San Antonio, Tex., for respondents Herrera et al.
Richard C. Hotvedt, Washington, D. C., for petitioners.
Mr. Justice STEWART delivered the opinion of the Court.
1
These cases, like International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396, involve alleged employment discrimination on the part of an employer and unions in the trucking industry. The employer, East Texas Motor Freight System, Inc., is a common carrier that employs city and over-the-road, or "line," truckdrivers. The company has a "no-transfer" policy, prohibiting drivers from transferring between terminals or from city-driver to line-driver jobs.1 In addition, under the applicable collective-bargaining agreements between the company and the unions, competitive seniority runs only from the date an employee enters a particular bargaining unit, so that a line driver's competitive seniority does not take into account any time he may have spent in other jobs with the company.2
2
The respondents brought this suit against the company and the unions in a Federal District Court, challenging the above practices. Although their complaint denominated the cause as a class action, they did not move for class certification in the trial court. After a two-day hearing the court dismissed the class allegations of the complaint and decided against the individual respondents on the merits. The Court of Appeals for the Fifth Circuit reversed, after itself certifying what it considered an appropriate class and holding that the no-transfer rule and the seniority system violated the statutory rights of that class under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V). 505 F.2d 40. This Court granted certiorari to review the judgment of the Court of Appeals. 425 U.S. 990, 96 S.Ct. 2200, 48 L.Ed.2d 814.
3
* The respondents are three Mexican-Americans who initiated this litigation as the named plaintiffs, Jesse Rodriguez, Sadrach Perez, and Modesto Herrera. They were employed as city drivers at the company's San Antonio terminal, and were members of Teamsters Local Union 657 and of the Southern Conference of Teamsters. There was no line-driver operation at the San Antonio terminal, and the respondents stipulated that they had not been discriminated against when they were first hired. In August 1970, some years after they were hired, each of them applied in writing for a line-driver job. In accord with its no-transfer policy, the company declined to consider these applications on their individual merits. The respondents then filed complaints with the Equal Employment Opportunity Commission, and after receiving "right to sue" letters from the Commission, see 42 U.S.C. § 2000e-5(e), they brought this lawsuit.
4
According to the complaint, the suit was brought on behalf of the named plaintiffs and all Negroes and Mexican-Americans who had been denied equal employment opportunities with the company because of their race or national origin. The complaint specifically alleged that the appropriate class should consist of all "East Texas Motor Freight's Mexican-American and Black in-city drivers included in the collective bargaining agreement entered into between East Texas Motor Freight and the Southern Conference of Teamsters covering the State of Texas. Additionally that such class should properly be composed of all Mexican-American and Black applicants for line driver positions with East Texas Motor Freight . . . from July 2, 1965 (the effective date of Title VII) to present."3
5
Despite the class allegations in their complaint, the plaintiffs did not move prior to trial to have the action certified as a class action pursuant to Fed.Rule Civ.Proc. 23, and no such certification was made by the District Judge. Indeed, the plaintiffs had stipulated before trial that " 'the only issue presently before the Court pertaining to the company is whether the failure of the Defendant East Texas Motor Freight to consider Plaintiffs' line driver applications constituted a violation of Title VII and 42 U.S.C. § 1981.' " App. 82. And the plaintiffs confined their evidence and arguments at trial to their individual claims. The defendants responded accordingly, with much of their proof devoted to showing that Rodriguez, Perez, and Herrera were not qualified to be line drivers.
6
Following trial, the District Court dismissed the class-action allegations. It stressed the plaintiffs' failure to move for a prompt determination of the propriety of class certification, their failure to offer evidence on that question, their concentration at the trial on their individual claims, their stipulation that the only issue to be determined concerned the company's failure to act on their applications, and the fact that, contrary to the relief the plaintiffs sought, see n. 3, supra, a large majority of the membership of Local 657 had recently rejected a proposal calling for the merger of city-driver and line-driver seniority lists with free transfer between jobs.4
7
The District Court also held against the named plaintiffs on their individual claims. It ruled that the no-transfer policy and the seniority system were proper business practices, neutrally applied, and that the company had not discriminated against the plaintiffs or retaliated against them for filing charges with the EEOC. The court further found: "None of the plaintiff employees could satisfy all of the qualifications for a road driver position according to the company manual due to age or weight or driving record. . . . The driving, work, and/or physical records of the plaintiffs are of such nature that only casual consideration need be given to determine that the plaintiffs cannot qualify to become road drivers." App. 64.
8
The Court of Appeals for the Fifth Circuit reversed. With respect to the propriety of the class action, the appellate court discounted entirely the plaintiffs' failure to move for certification. Determination of the class nature of a suit, the court ruled, is a "responsibility (that) falls to the court." 505 F.2d, at 50. Although the plaintiffs had acknowledged on appeal that only their individual claims had been tried, and had requested no more than that the case be remanded to the trial court for consideration of the class-action allegations, the Court of Appeals itself certified a class consisting of all of the company's Negro and Mexican-American city drivers covered by the applicable collective-bargaining agreements for the State of Texas. Stating that "the requirements of Rule 23(a) must be read liberally in the context of suits brought under Title VII and Section 1981," ibid., the court found that the named plaintiffs could " 'fairly and adequately protect the interests of the class.' " Ibid. The court minimized the antagonism between the plaintiffs and other city drivers with respect to the complaint's demand that seniority lists be merged, since "(t)he disagreement . . . concerned only the proper remedy; there was no antagonism with regard to the contention that the defendants practiced discrimination against the plaintiff class." Id., at 51.5
9
After certifying the class, the Court of Appeals went on to find classwide liability against the company and the union on the basis of the proof adduced at the trial of the individual claims. Contrary to the understanding of the judge who had tried the case, the appellate court determined that the trial had proceeded "as in a class action," with the acquiescence of the judge and the defendants. Id., at 52.6 The parties' stipulation that the only issue before the trial court concerned the company's failure to consider the named plaintiffs' applications for line-driver jobs was discounted as no more than "an attempt to eliminate some confusion in the exposition of evidence at trial." Ibid.
10
Accordingly, the Court of Appeals concluded, upon the trial record, that the company had discriminated against Negroes and Mexican-Americans in hiring line drivers, that the company's no-transfer rule and seniority system perpetuated the past discrimination and were not justified by business necessity, that the company's requirement of three years of immediately prior line-haul experience was an illegal employment qualification, and that the unions had violated Title VII and 42 U.S.C. § 1981 by "their role in establishing separate seniority rosters that failed to make allowance for minority city drivers who had been discriminatorily relegated to city driver jobs." 505 F.2d, at 61. The Court of Appeals did not disturb the trial court's finding that none of the named plaintiffs was qualified to be a line driver; rather, it held only that that finding had been "premature," because each plaintiff, as a member of the class, would be entitled to have his application considered on the merits when future line-driver vacancies arose.7
II
11
(1) It is our conclusion that on the record before it the Court of Appeals plainly erred in declaring a class action and in imposing upon the petitioners classwide liability. In arriving at this conclusion we do not reach the question whether a court of appeals should ever certify a class in the first instance. For it is inescapably clear that the Court of Appeals in any event erred in certifying a class in this case, for the simple reason that it was evident by the time the case reached that court that the named plaintiffs were not proper class representatives under Fed.Rule Civ.Proc. 23(a).8
12
(2, 3) In short, the trial court proceedings made clear that Rodriguez, Perez and Herrera were not members of the class of discriminatees they purported to represent. As this Court has repeatedly held, a class representative must be part of the class and "possess the same interest and suffer the same injury" as the class members. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706. See, e. g., Kremens v. Bartley, 431 U.S. 119, 131 n. 12, 97 S.Ct. 1709, 1716, 52 L.Ed.2d 184; Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 559, 42 L.Ed.2d 532; Rosario v. Rockefeller, 410 U.S. 752, 759 n. 9, 93 S.Ct. 1245, 1250, 36 L.Ed.2d 1; Hall v. Beals, 396 U.S. 45, 49, 90 S.Ct. 200, 202, 24 L.Ed.2d 214; Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 550-551, 7 L.Ed.2d 512. The District Court found upon abundant evidence that these plaintiffs lacked the qualifications to be hired as line drivers.9 Thus, they could have suffered no injury as a result of the alleged discriminatory practices, and they were, therefore simply not eligible to represent a class of persons who did allegedly suffer injury. Furthermore, each named plaintiff stipulated that he had not been discriminated against with respect to his initial hire. In the light of that stipulation they were hardly in a position to mount a classwide attack on the no-transfer rule and seniority system on the ground that these practices perpetuated past discrimination and locked minorities into the less desirable jobs to which they had been discriminatorily assigned.
13
(4) Apart from the named plaintiffs' evident lack of class membership, the record before the Court of Appeals disclosed at least two other strong indications that they would not "fairly and adequately protect the interests of the class."10 One was their failure to move for class certification prior to trial. Even assuming, as a number of courts have held, that a district judge has an obligation on his own motion to determine whether an action shall proceed as a class action, see, e. g., Senter v. General Motors Corp., 532 F.2d 511, 520-521 (CA6); Garrett v. City of Hamtramck, 503 F.2d 1236, 1243 (CA6); Castro v. Beecher, 459 F.2d 725, 731 (CA1), the named plaintiffs' failure to protect the interests of class members by moving for certification surely bears strongly on the adequacy of the representation that those class members might expect to receive. See, e. g., Nance v, Union Carbide Corp., 540 F.2d 718, 722-725 (CA4), cert. pending, Nos. 76-828, 76-834; Danner v. Phillips Petroleum Co., 447 F.2d 159, 164 (CA5); Beasley v. Kroehler Mfg. Co., 406 F.Supp. 926, 931 (ND Tex.); Walker v. Columbia University, 62 F.R.D. 63, 64 (SDNY); Glodgett v. Betit, 368 F.Supp. 211, 214 (Vt.); Herbst v. Able, 45 F.R.D. 451, 453 (SDNY). Another factor, apparent on the record, suggesting that the named plaintiffs were not appropriate class representatives was the conflict between the vote by members of the class rejecting a merger of the city- and line-driver collective-bargaining units,11 and the demand in the plaintiffs' complaint for just such a merger. See, e. g., Hansberry v. Lee, 311 U.S. 32, 44-45, 61 S.Ct. 115, 119, 85 L.Ed. 22.
14
(5) We are not unaware that suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs. Common questions of law or fact are typically present. But careful attention to the requirements of Fed.Rule Civ.Proc. 23 remains nonetheless indispensable. The mere fact that a complaint alleges racial or ethnic discrimination does not in itself ensure that the party who has brought the lawsuit will be an adequate representative of those who may have been the real victims of that discrimination.
15
(6) For the reasons we have discussed, the District Court did not err in denying individual relief or in dismissing the class allegations of the respondents' complaint.12 The judgment of the Court of Appeals is, accordingly, vacated, and the cases are remanded to that court for further proceedings consistent with this opinion.13
16
It is so ordered.
1
Under this policy a city driver must resign his job and forfeit all seniority in order to be eligible for a line-driver job. He gets no priority over other line-driver applicants by virtue of formerly having been with the company, and if he fails to become a line driver he is not automatically entitled to be restored to his city job.
2
For a fuller description of a similar seniority system, see International Brotherhood of Teamsters v. United States, 431 U.S. at 343-344, 97 S.Ct., at 1858-1859.
3
In addition to attacking the legality of the company's no-transfer and seniority policies, the complaint charged that the company excluded Negroes and Mexican-Americans from line-driver jobs, and that it had discharged plaintiff Perez and harassed plaintiff Rodriguez in retaliation for their having filed charges with the EEOC. The Southern Conference of Teamsters and Teamsters Local 657 were charged with participating in the exclusion of minority persons from line-driver jobs, acquiescing in the company's other discriminatory practices, and entering into collective-bargaining agreements that perpetuated the discrimination against Mexican-Americans and Negroes and erected "dual lines of seniority." In addition to other relief, the plaintiffs demanded that the company "merge its line-driver and city-driver seniority lists so as to provide for a singular seniority system based solely on an employee's anniversary date with the company."
4
The large majority of the members of Local 657 at the meeting that rejected the proposal were Mexican-American or Negro city drivers, negating any possibility that the vote was controlled by white persons or by line drivers.
5
The court also stated that possible antagonism could be cured by tailoring the award of relief, but it did not suggest how such tailoring could be accomplished short of doing what it in fact did: awarding retroactive seniority to discriminatees and ignoring the named plaintiffs' separate demand that the seniority lines be merged.
6
The Court of Appeals apparently concluded on the basis of a colloquy appearing in the trial transcript that the parties and the trial judge understood the trial to concern the class claims as well as the individual claims. 505 F.2d, at 52, and n. 14. This was contrary to the understanding of the trial judge as reflected in his findings. Moreover, as the full colloquy reveals, the trial judge ruled that evidence concerning general company practice would be admitted, not because of the class allegations, but only because it was probative with respect to the plaintiffs' individual claims.
7
The Court of Appeals ordered that all class members be given an opportunity to transfer to line-driver jobs with retroactive seniority to be determined under the Fifth Circuit's "qualification date" principle. See International Brotherhood of Teamsters v. United States, 431 U.S., at 333, 97 S.Ct., at 1853.
8
Rule 23(a) provides:
"(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."
9
Jesse Rodriguez did not have prior over-the-road experience with a truck line. His record as a city driver included at least three accidents and at least five personal injuries. Modesto Herrera had been involved in at least three accidents and seven injuries, resulting in much time lost from
work. He had received four warning letters from the company, of which three concerned abnormally low productivity. Sadrach Perez had been fired from his city-driver job by the time of suit. The District Court found that on occasion Perez had claimed to be totally and permanently disabled and had then returned to work, and that customers had complained of his disrespect and discourteousness. The company had placed at least four warning letters in his file before discharging him, referring to his failure to make deliveries, poor production, absence from work, and violation of instructions and company policy. More than 10 customers had notified the company that they would refuse freight if Perez was sent to deliver it and would refuse to give up freight if Perez was sent to receive it. An arbitration committee convened in connection with Perez' discharge had decided in the company's favor.
In light of this evidence, the District Court's finding that none of the respondents was qualified to be a line driver was not clearly erroneous. Nor was this finding in any way "premature." The trial had concerned the company's failure to consider the respondents' individual line-driver applications, and the plaintiffs had requested backpay and transfer with carryover seniority in addition to other relief. Even assuming, arguendo, that the company's failure even to consider the applications was discriminatory, the company was entitled to prove at trial that the respondents had not been injured because they were not qualified and would not have been hired in any event. See, e. g., International Brotherhood of Teamsters v. United States, 431 U.S., at 369 n. 53, 97 S.Ct., at 1871. Cf. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 285-287, 97 S.Ct. 568, 575-576, 50 L.Ed.2d 471.
10
See Fed.Rule Civ.Proc. 23(a), quoted in n. 8, supra.
11
See supra, at 400.
12
Obviously, a different case would be presented if the District Court had certified a class and only later had it appeared that the named plaintiffs were not class members or were otherwise inappropriate class representatives. In such a case, the class claims would have already been tried, and, provided the initial certification was proper and decertification not appropriate, the claims of the class members would not need to be mooted or destroyed because subsequent events or the proof at trial had undermined the named plaintiffs' individual claims. See, e. g., Franks v. Bowman Transportation Co., 424 U.S. 747, at 752-757, 96 S.Ct. 1251, 1258-1261, 47 L.Ed.2d 444; Moss v. Lane Co., 471 F.2d 853, 855-856 (CA4). Where no class has been certified, however, and the class claims remain to be tried, the decision whether the named plaintiffs should represent a class is appropriately made on the full record, including the facts developed at the trial of the plaintiffs' individual claims. At that point, as the Court of Appeals recognized in this case, "there (are) involved none of the imponderables that make the (class-action) decision so difficult early in litigation." 505 F.2d, at 51. See also Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15-16 (CA4).
13
The union petitioners, in Nos. 75-651 and 75-715, also attack the judgments entered against them in Herrera v. Yellow Freight System, Inc., 505 F.2d 66 (CA5), and Resendis v. Lee Way Motor Freight, Inc., 505 F.2d 69 (CA5). The judgments against the unions in those related cases are also vacated, and the cases are remanded to the Court of Appeals for further consideration in light of this opinion and our opinion in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396.
| 89
|
431 U.S. 324
97 S.Ct. 1843
52 L.Ed.2d 396
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Petitioner,v.UNITED STATES et al. T.I.M.E.-D.C., INC., Petitioner, v. UNITED STATES et al.
Nos. 75-636 and 75-672.
Argued Jan. 10, 1977.
Decided May 31, 1977.
Syllabus
The United States instituted this litigation under Title VII of the Civil Rights Act of 1964 against petitioners, a nationwide common carrier of motor freight, and a union representing a large group of the company's employees. The Government alleged that the company had engaged in a pattern or practice of discriminating against Negroes and Spanish-surnamed persons (hereinafter sometimes collectively "minority members") who were hired as servicemen or local city drivers, which were lower paying, less desirable jobs than the positions of line drivers (over-the-road, long-distance drivers), which went to whites, and that the seniority system in the collective-bargaining agreements between petitioners perpetuated ("locked in") the effects of past racial and ethnic discrimination because under that system a city driver or serviceman who transferred to a line-driver job had to forfeit all the competitive seniority he had accumulated in his previous bargaining unit and start at the bottom of the line drivers' "board." The Government sought a general injunctive remedy and specific "make whole" relief for individual discriminatees, which would allow them an opportunity to transfer to line-driver jobs with full company seniority. Section 703(a) of Title VII makes it an unlawful employment practice, inter alia, for an employer to fail or refuse to hire any individual or otherwise discriminate against him with regard to his employment because of his race or national origin. Section 703(h) provides in part that notwithstanding other provisions, it shall not be an unlawful employment practice for an employer to apply different employment standards "pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate . . . ." The District Court after trial, with respect to both the employment discrimination and the seniority system in the collective-bargaining agreements, held that petitioners had violated Title VII and enjoined both the company and the union from committing further violations thereof. With respect to individual relief, the court determined that the "affected class" of discriminatees included all minority members who had been hired as city drivers or servicemen at every company terminal with a line-driver operation, whether they were hired before or after Title VII's effective date. The discriminatees thereby became entitled to preference over all other line-driver applicants in the future. Finding that members of the affected class had been injured in varying degrees, the court created three subclasses, and applied to each a different formula for filling line-driver jobs and for establishment of seniority, giving retroactive seniority to the effective date of the Act to those who suffered "severe injury." The right of any class member to a line-driver vacancy was made subject to the prior recall rights under the collective-bargaining agreement of line drivers who had been on layoff for not more than three years. Although agreeing with the District Court's basic conclusions, the Court of Appeals rejected the affected-class trisection, holding that the minority members could bid for future line-driver jobs on the basis of their company seniority and that once a class member became a line driver he could use his full company seniority even if it antedated Title VII's effective date, limited only by a "qualification date" formula, under which seniority could not be awarded for periods prior to the date when (1) a line-driver job was vacant, and (2) the class member met (or, given the opportunity, would have met) the line-driver qualifications. Holding that the three-year priority in favor of laid-off workers "would unduly impede the eradication of past discrimination," the Court of Appeals directed that when a not purely temporary line-driver vacancy arose a class member might compete against any line driver on layoff on the basis of the member's retroactive seniority. Held :
1. The Government sustained its burden of proving that the company engaged in a systemwide pattern or practice of employment discrimination against minority members in violation of Title VII by regularly and purposefully treating such members less favorably than white persons. The evidence, showing pervasive statistical disparities in line-driver positions between employment of the minority members and whites, and bolstered by considerable testimony of specific instances of discrimination, was not adequately rebutted by the company and supported the findings of the courts below. Pp. 334-343.
2. Since the Government proved that the company engaged in a post-Act pattern of discriminatory employment policies, retroactive seniority may be awarded as relief for post-Act discriminatees even if the seniority system agreement makes no provision for such relief. Franks v. Bowman Transportation Co., 424 U.S. 747, 778-779, 96 S.Ct. 1251, 1271, 47 L.Ed.2d 444. Pp. 347-348.
3. The seniority system was protected by § 703(h) and therefore the union's conduct in agreeing to and maintaining the system did not violate Title VII. Employees who suffered only pre-Act discrimination are not entitled to relief, and no person may be given retroactive seniority to a date earlier than the Act's effective date. The District Court's injunction against the union must consequently be vacated. Pp. 348-356.
(a) By virtue of § 703(h) a bona fide seniority system does not become unlawful simply because it may perpetuate pre-Title VII discrimination, for Congress (as is manifest from the language and legislative history of the Act) did not intend to make it illegal for employees with vested seniority rights to continue to exercise those rights, even at the expense of pre-Act discriminatees. Thus here because of the company's intentional pre-Act discrimination the disproportionate advantage given by the seniority system to the white line drivers with the longest tenure over the minority member employees who might by now have enjoyed those advantages were it not for the pre-Act discrimination is sanctioned by § 703(h). Pp. 348-355.
(b) The seniority system at issue here is entirely bona fide, applying to all races and ethnic groups, and was negotiated and is maintained free from any discriminatory purpose. Pp. 355-356.
4. Every post-Act minority member applicant for a line-driver position is presumptively entitled to relief, subject to a showing by the company that its earlier refusal to place the applicant in a line-driver job was not based on its policy of discrimination. Cf. Franks, supra, at 773 n. 32, 96 S.Ct., at 1268. Pp. 357-362.
5. An incumbent employee's failure to apply for a job does not inexorably bar an award of retroactive seniority, and individual nonapplicants must be afforded an opportunity to undertake their difficult task of proving that they should be treated as applicants and therefore are presumptively entitled to relief accordingly. Pp. 362-371.
(a) Congress' purpose in vesting broad equitable powers in Title VII courts was "to make possible the 'fashion(ing) (of) the most complete relief possible,' " Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280. Measured against the broad prophylactic purposes of Title VII, the company's assertion that a person who has not actually applied for a job can never be awarded seniority relief cannot prevail, for a consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection. Pp. 364-357.
(b) However, a nonapplicant must still show that he was a potential victim of unlawful discrimination and that he would have applied for a line-driver job but for the company's discriminatory practices. The known prospect of discriminatory rejection shows only that employees who wanted line-driving jobs may have been deterred from applying for them but does not show which of the nonapplicants actually wanted such jobs or were qualified. Consequently, the Government has the burden of proving at a remedial hearing to be conducted by the District Court which specific nonapplicants would have applied for line-driver jobs but for their knowledge of the company's discriminatory policies. Pp. 367-371.
6. At such hearing on remand the District Court will have to identify which of the minority members were actual victims of discrimination and, by application of the basic principles of equity, to balance their interest against the legitimate expectations of other employees innocent of wrongdoing. Pp. 371-376.
5 Cir., 517 F.2d 299, vacated and remanded.
Robert D. Schuler, Bloomfield Hills, Mich., for petitioner in No. 75-672.
L. N. D. Wells, Jr., Dallas, Tex., for petitioner in No. 75-636.
Lawrence G. Wallace, Washington, D. C., for respondents in both cases.
Mr. Justice STEWART delivered the opinion of the Court.
1
This litigation brings here several important questions under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V). The issues grow out of alleged unlawful employment practices engaged in by an employer and a union. The employer is a common carrier of motor freight with nationwide operations, and the union represents a large group of its employees. The District Court and the Court of Appeals held that the employer had violated Title VII by engaging in a pattern and practice of employment discrimination against Negroes and Spanish-surnamed Americans, and that the union had violated the Act by agreeing with the employer to create and maintain a seniority system that perpetuated the effects of past racial and ethnic discrimination. In addition to the basic questions presented by these two rulings, other subsidiary issues must be resolved if violations of Title VII occurred issues concerning the nature of the relief to which aggrieved individuals may be entitled.
2
* The United States brought an action in a Tennessee federal court against the petitioner T.I.M.E.-D.C., Inc. (company), pursuant to § 707(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a).1 The complaint charged that the company had followed discriminatory hiring, assignment, and promotion policies against Negroes at its terminal in Nashville, Tenn.2 The Government brought a second action against the company almost three years later in a Federal District Court in Texas, charging a pattern and practice of employment discrimination against Negroes and Spanish-surnamed persons throughout the company's transportation system. The petitioner International Brotherhood of Teamsters (union) was joined as a defendant in that suit. The two actions were consolidated for trial in the Northern District of Texas.
3
The central claim in both lawsuits was that the company had engaged in a pattern or practice of discriminating against minorities in hiring so-called line drivers. Those Negroes and Spanish-surnamed persons who had been hired, the Government alleged, were given lower paying, less desirable jobs as servicemen or local city drivers, and were thereafter discriminated against with respect to promotions and transfers.3 In this connection the complaint also challenged the seniority system established by the collective-bargaining agreements between the employer and the union. The Government sought a general injunctive remedy and specific "make whole" relief for all individual discriminatees, which would allow them an opportunity to transfer to line-driver jobs with full company seniority for all purposes.
4
The cases went to trial4 and the District Court found that the Government had shown "by a preponderance of the evidence that T.I.M.E.-D.C. and its predecessor companies were engaged in a plan and practice of discrimination in violation of Title VII . . . ."5 The court further found that the seniority system contained in the collective-bargaining contracts between the company and the union violated Title VII because it "operate(d) to impede the free transfer of minority groups into and within the company." Both the company and the union were enjoined from committing further violations of Title VII.
5
With respect to individual relief the court accepted the Government's basic contention that the "affected class" of discriminatees included all Negro and Spanish-surnamed incumbent employees who had been hired to fill city operations or serviceman jobs at every terminal that had a line-driver operation.6 All of these employees, whether hired before or after the effective date of Title VII, thereby became entitled to preference over all other applicants with respect to consideration for future vacancies in line-driver jobs.7 Finding that members of the affected class had been injured in different degrees, the court created three subclasses. Thirty persons who had produced "the most convincing evidence of discrimination and harm" were found to have suffered "severe injury." The court ordered that they be offered the opportunity to fill line-driver jobs with competitive seniority dating back to July 2, 1965, the effective date of Title VII.8 A second subclass included four persons who were "very possibly the objects of discrimination" and who "were likely harmed," but as to whom there had been no specific evidence of discrimination and injury. The court decreed that these persons were entitled to fill vacancies in line-driving jobs with competitive seniority as of January 14, 1971, the date on which the Government had filed its systemwide lawsuit. Finally, there were over 300 remaining members of the affected class as to whom there was "no evidence to show that these individuals were either harmed or not harmed individually." The court ordered that they be considered for line-driver jobs9 ahead of any applicants from the general public but behind the two other subclasses. Those in the third subclass received no retroactive seniority; their competitive seniority as line drivers would begin with the date they were hired as line drivers. The court further decreed that the right of any class member to fill a line-driver vacancy was subject to the prior recall rights of laid-off line drivers, which under the collective-bargaining agreements then in effect extended for three years.10
6
The Court of Appeals for the Fifth Circuit agreed with the basic conclusions of the District Court: that the company had engaged in a pattern or practice of employment discrimination and that the seniority system in the collective-bargaining agreements violated Title VII as applied to victims of prior discrimination. 517 F.2d 299. The appellate court held, however, that the relief ordered by the District Court was inadequate. Rejecting the District Court's attempt to trisect the affected class, the Court of Appeals held that all Negro and Spanish-surnamed incumbent employees were entitled to bid for future line-driver jobs on the basis of their company seniority, and that once a class member had filled a job, he could use his full company seniority even if it predated the effective date of Title VII for all purposes, including bidding and layoff. This award of retroactive seniority was to be limited only by a "qualification date" formula, under which seniority could not be awarded for periods prior to the date when (1) a line-driving position was vacant,11 and (2) the class member met (or would have met, given the opportunity) the qualifications for employment as a line driver.12 Finally, the Court of Appeals modified that part of the District Court's decree that had subjected the rights of class members to fill future vacancies to the recall rights of laid-off employees. Holding that the three-year priority in favor of laid-off workers "would unduly impede the eradication of past discrimination," id., at 322, the Court of Appeals ordered that class members be allowed to compete for vacancies with laid-off employees on the basis of the class members' retroactive seniority. Laid-off line drivers would retain their prior recall rights with respect only to "purely temporary" vacancies. Ibid.13
7
The Court of Appeals remanded the case to the District Court to hold the evidentiary hearings necessary to apply these remedial principles. We granted both the company's and the union's petitions for certiorari to consider the significant questions presented under the Civil Rights Act of 1964, 425 U.S. 990, 96 S.Ct. 2200, 48 L.Ed.2d 814.
II
8
In this Court the company and the union contend that their conduct did not violate Title VII in any respect, asserting first that the evidence introduced at trial was insufficient to show that the company engaged in a "pattern or practice" of employment discrimination. The union further contends that the seniority system contained in the collective-bargaining agreements in no way violated Title VII. If these contentions are correct, it is unnecessary, of course, to reach any of the issues concerning remedies that so occupied the attention of the Court of Appeals.
A.
9
Consideration of the question whether the company engaged in a pattern or practice of discriminatory hiring practices involves controlling legal principles that are relatively clear. The Government's theory of discrimination was simply that the company, in violation of § 703(a) of Title VII,14 regularly and purposefully treated Negroes and Spanish-surnamed Americans less favorably than white persons. The disparity in treatment allegedly involved the refusal to recruit, hire, transfer, or promote minority group members on an equal basis with white people, particularly with respect to line-driving positions. The ultimate factual issues are thus simply whether there was a pattern or practice of such disparate treatment and, if so, whether the differences were "racially premised." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 n. 18, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668.15
10
As the plaintiff, the Government bore the initial burden of making out a prima facie case of discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280; McDonnell Douglas Corp. v. Green, supra, 411 U.S., at 802, 93 S.Ct., at 1824. And, because it alleged a systemwide pattern or practice of resistance to the full enjoyment of Title VII rights, the Government ultimately had to prove more than the mere occurrence of isolated or "accidental" or sporadic discriminatory acts. It had to establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure the regular rather than the unusual practice.16
11
We agree with the District Court and the Court of Appeals that the Government carried its burden of proof. As of March 31, 1971, shortly after the Government filed its complaint alleging systemwide discrimination, the company had 6,472 employees. Of these, 314 (5%) were Negroes and 257 (4%) were Spanish-surnamed Americans. Of the 1,828 line drivers, however, there were only 8 (0.4%) Negroes and 5 (0.3%) Spanish-surnamed persons, and all of the Negroes had been hired after the litigation had commenced. With one exception a man who worked as a line driver at the Chicago terminal from 1950 to 1959 the company and its predecessors did not employ a Negro on a regular basis as a line driver until 1969. And, as the Government showed, even in 1971 there were terminals in areas of substantial Negro population where all of the company's line drivers were white.17 A great majority of the Negroes (83%) and Spanish-surnamed Americans (78%) who did work for the company held the lower paying city operations and serviceman jobs,18 whereas only 39% of the nonminority employees held jobs in those categories.
12
The Government bolstered its statistical evidence with the testimony of individuals who recounted over 40 specific instances of discrimination. Upon the basis of this testimony the District Court found that "(n)umerous qualified black and Spanish-surnamed American applicants who sought line driving jobs at the company over the years, either had their requests ignored, were given false or misleading information about requirements, opportunities, and application procedures, or were not considered and hired on the same basis that whites were considered and hired." Minority employees who wanted to transfer to line-driver jobs met with similar difficulties.19
13
The company's principal response to this evidence is that statistics can never in and of themselves prove the existence of a pattern or practice of discrimination, or even establish a prima facie case shifting to the employer the burden of rebutting the inference raised by the figures. But, as even our brief summary of the evidence shows, this was not a case in which the Government relied on "statistics alone." The individuals who testified about their personal experiences with the company brought the cold numbers convincingly to life.
14
In any event, our cases make it unmistakably clear that "(s)tatistical analyses have served and will continue to serve an important role" in cases in which the existence of discrimination is a disputed issue. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630. See also McDonnell Douglas Corp. v. Green, 411 U.S., at 805, 93 S.Ct., at 1825. Cf. Washington v. Davis, 426 U.S. 229, 241-242, 96 S.Ct. 2040, 2048-2049, 48 L.Ed.2d 597. We have repeatedly approved the use of statistical proof, where it reached proportions comparable to those in this case, to establish a prima facie case of racial discrimination in jury selection cases, see, e. g., Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567; Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. Statistics are equally competent in proving employment discrimination.20 We caution only that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances. See, e. g., Hester v. Southern R. Co., 497 F.2d 1374, 1379-1381 (CA5).
15
In addition to its general protest against the use of statistics in Title VII cases, the company claims that in this case the statistics revealing racial imbalance are misleading because they fail to take into account the company's particular business situation as of the effective date of Title VII. The company concedes that its line drivers were virtually all white in July 1965, but it claims that thereafter business conditions were such that its work force dropped. Its argument is that low personnel turnover, rather than post-Act discrimination, accounts for more recent statistical disparities. It points to substantial minority hiring in later years, especially after 1971, as showing that any pre-Act patterns of discrimination were broken.
16
The argument would be a forceful one if this were an employer who, at the time of suit, had done virtually no new hiring since the effective date of Title VII. But it is not. Although the company's total number of employees apparently dropped somewhat during the late 1960's, the record shows that many line drivers continued to be hired throughout this period, and that almost all of them were white.21 To be sure, there were improvements in the company's hiring practices. The Court of Appeals commented that "T.I.M.E.-D.C.'s recent minority hiring progress stands as a laudable good faith effort to eradicate the effects of past discrimination in the area of hiring and initial assignment."22 517 F.2d, at 316. But the District Court and the Court of Appeals found upon substantial evidence that the company had engaged in a course of discrimination that continued well after the effective date of Title VII. The company's later changes in its hiring and promotion policies could be of little comfort to the victims of the earlier post-Act discrimination, and could not erase its previous illegal conduct or its obligation to afford relief to those who suffered because of it. Cf. Albemarle Paper Co. v. Moody, 422 U.S., at 413-423, 95 S.Ct., at 2369-2374.23
17
The District Court and the Court of Appeals, on the basis of substantial evidence, held that the Government had proved a prima facie case of systematic and purposeful employment discrimination, continuing well beyond the effective date of Title VII. The company's attempts to rebut that conclusion were held to be inadequate.24 For the reasons we have summarized, there is no warrant for this Court to disturb the findings of the District Court and the Court of Appeals on this basic issue. See Blau v. Lehman, 368 U.S. 403, 408-409, 82 S.Ct. 451, 454, 7 L.Ed.2d 403; Faulkner v. Gibbs, 338 U.S. 267, 268, 70 S.Ct. 25, 94 L.Ed. 62; United States v. Dickinson, 331 U.S. 745, 751, 67 S.Ct. 1382, 1386, 91 L.Ed. 1789; United States v. Commercial Credit Co., 286 U.S. 63, 67, 52 S.Ct. 467, 468, 76 L.Ed. 978; United States v. Chemical Foundation, Inc., 272 U.S. 1, 14, 47 S.Ct. 1, 6, 71 L.Ed. 131; Baker v. Schofield, 243 U.S. 114, 118, 37 S.Ct. 333, 334, 61 L.Ed. 626; Towson v. Moore, 173 U.S. 17, 24, 19 S.Ct. 332, 334, 43 L.Ed. 597.
B
18
The District Court and the Court of Appeals also found that the seniority system contained in the collective-bargaining agreements between the company and the union operated to violate Title VII of the Act.
19
For purposes of calculating benefits, such as vacations, pensions, and other fringe benefits, an employee's seniority under this system runs from the date he joins the company, and takes into account his total service in all jobs and bargaining units. For competitive purposes, however, such as determining the order in which employees may bid for particular jobs, are laid off, or are recalled from layoff, it is bargaining-unit seniority that controls. Thus, a line driver's seniority, for purposes of bidding for particular runs25 and protection against layoff, takes into account only the length of time he has been a line driver at a particular terminal.26 The practical effect is that a city driver or serviceman who transfers to a line-driver job must forfeit all the competitive seniority he has accumulated in his previous bargaining unit and start at the bottom of the line drivers' "board."
20
The vice of this arrangement, as found by the District Court and the Court of Appeals, was that it "locked" minority workers into inferior jobs and perpetuated prior discrimination by discouraging transfers to jobs as line drivers. While the disincentive applied to all workers, including whites, it was Negroes and Spanish-surnamed persons who, those courts found, suffered the most because many of them had been denied the equal opportunity to become line drivers when they were initially hired, whereas whites either had not sought or were refused line-driver positions for reasons unrelated to their race or national origin.
21
The linchpin of the theory embraced by the District Court and the Court of Appeals was that a discriminatee who must forfeit his competitive seniority in order finally to obtain a line-driver job will never be able to "catch up" to the seniority level of his contemporary who was not subject to discrimination.27 Accordingly, this continued, built-in disadvantage to the prior discriminatee who transfers to a line-driver job was held to constitute a continuing violation of Title VII, for which both the employer and the union who jointly created and maintain the seniority system were liable.
22
The union, while acknowledging that the seniority system may in some sense perpetuate the effects of prior discrimination, asserts that the system is immunized from a finding of illegality by reason of § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), which provides in part:
23
"Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate because of race . . . or national origin . . . ."
24
It argues that the seniority system in this case is "bona fide" within the meaning of § 703(h) when judged in light of its history, intent, application, and all of the circumstances under which it was created and is maintained. More specifically, the union claims that the central purpose of § 703(h) is to ensure that mere perpetuation of pre-Act discrimination is not unlawful under Title VII. And, whether or not § 703(h) immunizes the perpetuation of post-Act discrimination, the union claims that the seniority system in this litigation has no such effect. Its position in this Court, as has been its position throughout this litigation, is that the seniority system presents no hurdle to post-Act discriminatees who seek retroactive seniority to the date they would have become line drivers but for the company's discrimination. Indeed, the union asserts that under its collective-bargaining agreements the union will itself take up the cause of the post-Act victim and attempt, through grievance procedures, to gain for him full "make whole" relief, including appropriate seniority.
25
The Government responds that a seniority system that perpetuates the effects of prior discrimination pre-Act or post-Act can never be "bona fide" under § 703(h); at a minimum Title VII prohibits those applications of a seniority system that perpetuate the effects on incumbent employees of prior discriminatory job assignments.
26
The issues thus joined are open ones in this Court.28 We considered § 703(h) in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444, but there decided only that § 703(h) does not bar the award of retroactive seniority to job applicants who seek relief from an employer's post-Act hiring discrimination. We stated that "the thrust of (§ 703(h)) is directed toward defining what is and what is not an illegal discriminatory practice in instances in which the post-Act operation of a seniority system is challenged as perpetuating the effects of discrimination occurring prior to the effective date of the Act." 424 U.S., at 761, 96 S.Ct., at 1263. Beyond noting the general purpose of the statute, however, we did not undertake the task of statutory construction required in this litigation.
27
(1)
28
Because the company discriminated both before and after the enactment of Title VII, the seniority system is said to have operated to perpetuate the effects of both pre- and post-Act discrimination. Post-Act discriminatees, however, may obtain full "make whole" relief, including retroactive seniority under Franks v. Bowman, supra, without attacking the legality of the seniority system as applied to them. Franks made clear and the union acknowledges that retroactive seniority may be awarded as relief from an employer's discriminatory hiring and assignment policies even if the seniority system agreement itself makes no provision for such relief.29 424 U.S., at 778-779, 96 S.Ct., at 1271. Here the Government has proved that the company engaged in a post-Act pattern of discriminatory hiring, assignment, transfer and promotion policies. Any Negro or Spanish-surnamed American injured by those policies may receive all appropriate relief as a direct remedy for this discrimination.30
29
(2)
30
What remains for review is the judgment that the seniority system unlawfully perpetuated the effects of pre-Act discrimination. We must decide, in short, whether § 703(h) validates otherwise bona fide seniority systems that afford no constructive seniority to victims discriminated against prior to the effective date of Title VII, and it is to that issue that we now turn.
31
The primary purpose of Title VII was "to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. McDonnell Douglas Corp. v. Green, 411 U.S., at 800, 93 S.Ct., at 1823.31 See also Albemarle Paper Co. v. Moody, 422 U.S., at 417-418, 95 S.Ct., at 2371-2372; Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147. Griggs v. Duke Power Co., 401 U.S., at 429-431, 91 S.Ct., at 852-853. To achieve this purpose, Congress "proscribe(d) not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Id., at 431, 91 S.Ct., at 853. Thus, the Court has repeatedly held that a prima facie Title VII violation may be established by policies or practices that are neutral on their face and in intent but that nonetheless discriminate in effect against a particular group. General Electric Co. v. Gilbert, 429 U.S. 125, 137, 97 S.Ct. 401, 408, 50 L.Ed.2d 343; Washington v. Davis, 426 U.S., at 246-247, 96 S.Ct., at 2050-2051; Albemarle Paper Co. v. Moody, supra, 422 U.S., at 422, 425, 95 S.Ct., at 2374, 2375; McDonnell Douglas Corp. v. Green, supra, 411 U.S., at 802 n. 14, 93 S.Ct., at 1824; Griggs v. Duke Power Co., supra.
32
One kind of practice "fair in form, but discriminatory in operation" is that which perpetuates the effects of prior discrimination.32 As the Court held in Griggs : "Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." 401 U.S., at 430, 91 S.Ct., at 853.
33
Were it not for § 703(h), the seniority system in this case would seem to fall under the Griggs rationale. The heart of the system is its allocation of the choicest jobs, the greatest protection against layoffs, and other advantages to those employees who have been line drivers for the longest time. Where, because of the employer's prior intentional discrimination, the line drivers with the longest tenure are without exception white, the advantages of the seniority system flow disproportionately to them and away from Negro and Spanish-surnamed employees who might by now have enjoyed those advantages had not the employer discriminated before the passage of the Act. This disproportionate distribution of advantages does in a very real sense "operate to 'freeze' the status quo of prior discriminatory employment practices." But both the literal terms of § 703(h) and the legislative history of Title VII demonstrate that Congress considered this very effect of many seniority systems extended a measure of immunity to them.
34
Throughout the initial consideration of H.R. 7152, later enacted as the Civil Rights Act of 1964, critics of the bill charged that it would destroy existing seniority rights.33 The consistent response of Title VII's congressional proponents and of the Justice Department was that seniority rights would not be affected, even where the employer had discriminated prior to the Act.34 An interpretive memorandum placed in the Congressional Record by Senators Clark and Case stated:
35
"Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective. Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when the title comes into effect the employer's obligation would be simply to fill future vacancies on a non-discriminatory basis. He would not be obliged or indeed, permitted to fire whites in order to hire Negroes or to prefer Negroes for future vacancies, or, once Negroes are hired to give them special seniority rights at the expense of the white workers hired earlier." 110 Cong.Rec. 7213 (1964) (emphasis added).35
36
A Justice Department statement concerning Title VII placed in the Congressional Record by Senator Clark, voiced the same conclusion:
37
"Title VII would have no effect on seniority rights existing at the time it takes effect. If, for example, a collective bargaining contract provides that in the event of layoffs, those who were hired last must be laid off first, such a provision would not be affected in the least by title VII. This would be true even in the case where owing to discrimination prior to the effective date of the title, white workers had more seniority than Negroes." Id., at 7207 (emphasis added).36
38
While these statements were made before § 703(h) was added to Title VII, they are authoritative indicators of that section's purpose. Section 703(h) was enacted as part of the Mansfield-Dirksen compromise substitute bill that cleared the way for the passage of Title VII.37 The drafters of the compromise bill stated that one of its principal goals was to resolve the ambiguities in the House-passed version of H.R. 7152. See, e. g., 110 Cong.Rec. 11935-11937 (1964) (remarks of Sen. Dirksen); id., at 12707 (remarks of Sen. Humphrey). As the debates indicate, one of those ambiguities concerned Title VII's impact on existing collectively bargained seniority rights. It is apparent that § 703(h) was drafted with an eye toward meeting the earlier criticism on this issue with an explicit provision embodying the understanding and assurances of the Act's proponents, namely, that Title VII would not outlaw such differences in treatment among employees as flowed from a bona fide seniority system that allowed for full exercise of seniority accumulated before the effective date of the Act. It is inconceivable that § 703(h), as part of a compromise bill, was intended to vitiate the earlier representations of the Act's supporters by increasing Title VII's impact on seniority systems. The statement of Senator Humphrey, noted in Franks, 424 U.S., at 761, 96 S.Ct., at 1262, confirms that the addition of § 703(h) "merely clarifies (Title VII's) present intent and effect." 110 Cong.Rec. 12723 (1964).
39
In sum, the unmistakable purpose of § 703(h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII. As the legislative history shows, this was the intended result even where the employer's pre-Act discrimination resulted in whites having greater existing seniority rights than Negroes. Although a seniority system inevitably tends to perpetuate the effects of pre-Act discrimination in such cases, the congressional judgment was that Title VII should not outlaw the use of existing seniority lists and thereby destroy or water down the vested seniority rights of employees simply because their employer had engaged in discrimination prior to the passage of the Act.
40
To be sure, § 703(h) does not immunize all seniority systems. It refers only to "bona fide" systems, and a proviso requires that any differences in treatment not be "the result of an intention to discriminate because of race . . . or national origin . . . ." But our reading of the legislative history compels us to reject the Government's broad argument that no seniority system that tends to perpetuate pre-Act discrimination can be "bona fide." To accept the argument would require us to hold that a seniority system becomes illegal simply because it allows the full exercise of the pre-Act seniority rights of employees of a company that discriminated before Title VII was enacted. It would place an affirmative obligation on the parties to the seniority agreement to subordinate those rights in favor of the claims of pre-Act discriminatees without seniority. The consequence would be a perversion of the congressional purpose. We cannot accept the invitation to disembowel § 703(h) by reading the words "bona fide" as the Government would have us do.38 Accordingly, we hold that an otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination. Congress did not intend to make it illegal for employees with vested seniority rights to continue to exercise those rights, even at the expense of pre-Act discriminatees.39
41
That conclusion is inescapable even in a case, such as this one, where the pre-Act discriminatees are incumbent employees who accumulated seniority in other bargaining units. Although there seems to be no explicit reference in the legislative history to pre-Act discriminatees already employed in less desirable jobs, there can be no rational basis for distinguishing their claims from those of persons initially denied any job but hired later with less seniority than they might have had in the absence of pre-Act discrimination.40 We rejected any such distinction in Franks, finding that it had "no support anywhere in Title VII or its legislative history," 424 U.S., at 768, 96 S.Ct., at 1266. As discussed above, Congress in 1964 made clear that a seniority system is not unlawful because it honors employees' existing rights, even where the employer has engaged in pre-Act discriminatory hiring or promotion practices. It would be as contrary to that mandate to forbid the exercise of seniority rights with respect to discriminatees who held inferior jobs as with respect to later hired minority employees who previously were denied any job. If anything, the latter group is the more disadvantaged. As in Franks, " 'it would indeed be surprising if Congress gave a remedy for the one (group) which it denied for the other.' " Ibid., quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187, 61 S.Ct. 845, 849, 85 L.Ed. 1271.41
42
(3)
43
The seniority system in this litigation is entirely bona fide. It applies equally to all races and ethnic groups. To the extent that it "locks" employees into non-line-driver jobs, it does so for all. The city drivers and servicemen who are discouraged from transferring to line-driver jobs are not all Negroes or Spanish-surnamed Americans; to the contrary, the overwhelming majority are white. The placing of line drivers in a separate bargaining unit from other employees is rational in accord with the industry practice, and consistent with National Labor Relations Board precedents.42 It is conceded that the seniority system did not have its genesis in racial discrimination, and that it was negotiated and has been maintained free from any illegal purpose. In these circumstances, the single fact that the system extends no retroactive seniority to pre-Act discriminatees does not make it unlawful.
44
Because the seniority system was protected by § 703(h), the union's conduct in agreeing to and maintaining the system did not violate Title VII. On remand, the District Court's injunction against the union must be vacated.43
III
45
Our conclusion that the seniority system does not violate Title VII will necessarily affect the remedy granted to individual employees on remand of this litigation to the District Court. Those employees who suffered only pre-Act discrimination are not entitled to relief, and no person may be given retroactive seniority to a date earlier than the effective date of the Act. Several other questions relating to the appropriate measure of individual relief remain, however, for our consideration.
46
The petitioners argue generally that the trial court did not err in tailoring the remedy to the "degree of injury" suffered by each individual employee, and that the Court of Appeals' "qualification date" formula sweeps with too broad a brush by granting a remedy to employees who were not shown to be actual victims of unlawful discrimination. Specifically, the petitioners assert that no employee should be entitled to relief until the Government demonstrates that he was an actual victim of the company's discriminatory practices; that no employee who did not apply for a line-driver job should be granted retroactive competitive seniority; and that no employee should be elevated to a line-driver job ahead of any current line driver on layoff status. We consider each of these contentions separately.
A.
47
The petitioners' first contention is in substance that the Government's burden of proof in a pattern-or-practice case must be equivalent to that outlined in McDonnell Douglas v. Green. Since the Government introduced specific evidence of company discrimination against only some 40 employees, they argue that the District Court properly refused to award retroactive seniority to the remainder of the class of minority incumbent employees.
48
In McDonnell Douglas the Court considered "the order and allocation of proof in a private, non-class action challenging employment discrimination." 411 U.S., at 800, 93 S.Ct., at 1823. We held that an individual Title VII complainant must carry the initial burden of proof by establishing a prima facie case of racial discrimination. On the specific facts there involved, we concluded that this burden was met by showing that a qualified applicant, who was a member of a racial minority group, had unsuccessfully sought a job for which there was a vacancy and for which the employer continued thereafter to seek applicants with similar qualifications. This initial showing justified the inference that the minority applicant was denied an employment opportunity for reasons prohibited by Title VII, and therefore shifted the burden to the employer to rebut that inference by offering some legitimate, nondiscriminatory reason for the rejection. Id., at 802, 93 S.Ct., at 1824.
49
The company and union seize upon the McDonnell Douglas pattern as the only means of establishing a prima facie case of individual discrimination. Our decision in that case, however, did not purport to create an inflexible formulation. We expressly noted that "(t)he facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from (a plaintiff) is not necessarily applicable in every respect to differing factual situations." Id., at 802 n. 13, 93 S.Ct., at 1824. The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.44
50
In Franks v. Bowman Transportation Co., the Court applied this principle in the context of a class action. The Franks plaintiffs proved, to the satisfaction of a District Court, that Bowman Transportation Co. "had engaged in a pattern of racial discrimination in various company policies, including the hiring, transfer, and discharge of employees." 424 U.S., at 751, 96 S.Ct., at 1257. Despite this showing, the trial court denied seniority relief to certain members of the class of discriminatees because not every individual had shown that he was qualified for the job he sought and that a vacancy had been available. We held that the trial court had erred in placing this burden on the individual plaintiffs. By "demonstrating the existence of a discriminatory hiring pattern and practice" the plaintiffs had made out a prima facie case of discrimination against the individual class members; the burden therefore shifted to the employer "to prove that individuals who reapply were not in fact victims of previous hiring discrimination." Id., at 772, 96 S.Ct., at 1268. The Franks case thus illustrates another means by which a Title VII plaintiff's initial burden of proof can be met. The class there alleged a broad-based policy of employment discrimination; upon proof of that allegation there were reasonable grounds to infer that individual hiring decisions were made in pursuit of the discriminatory policy and to require the employer to come forth with evidence dispelling that inference.45
51
Although not all class actions will necessarily follow the Franks model, the nature of a pattern-or-practice suit brings it squarely within our holding in Franks. The plaintiff in a pattern-or-practice action is the Government, and its initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers. See supra, at 336, and n. 16. At the initial, "liability" stage of a pattern-or-practice suit the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the Government's proof is either inaccurate or insignificant. An employer might show, for example, that the claimed discriminatory pattern is a product of pre-Act hiring rather than unlawful post-Act discrimination, or that during the period it is alleged to have pursued a discriminatory policy it made too few employment decisions to justify the inference that it had engaged in a regular practice of discrimination.46
52
If an employer fails to rebut the inference that arises from the Government's prima facie case, a trial court may then conclude that a violation has occurred and determine the appropriate remedy. Without any further evidence from the Government, a court's finding of a pattern or practice justifies an award of prospective relief. Such relief might take the form of an injunctive order against continuation of the discriminatory practice, an order that the employer keep records of its future employment decisions and file periodic reports with the court, or any other order "necessary to ensure the full enjoyment of the rights" protected by Title VII.47
53
When the Government seeks individual relief for the victims of the discriminatory practice, a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief. The petitioners' contention in this case is that if the Government has not, in the course of proving a pattern or practice, already brought forth specific evidence that each individual was discriminatorily denied an employment opportunity, it must carry that burden at the second, "remedial" stage of trial. That basic contention was rejected in the Franks case. As was true of the particular facts in Franks, and as is typical of Title VII pattern-or-practice suits, the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage of the trial. The employer cannot, therefore, claim that there is no reason to believe that its individual employment decisions were discriminatorily based; it has already been shown to have maintained a policy of discriminatory decisionmaking.
54
The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. The Government need only show that an alleged individual discriminatee unsuccessfully applied for a job48 and therefore was a potential victim of the proved discrimination. As in Franks, the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons. See 424 U.S., at 773 n. 32, 96 S.Ct., at 1268.
55
In Part II-A, supra, we have held that the District Court and Court of Appeals were not in error in finding that the Government had proved a systemwide pattern and practice of racial and ethnic discrimination on the part of the company. On remand, therefore, every post-Act minority group applicant49 for a line-driver position will be presumptively entitled to relief, subject to a showing by the company that its earlier refusal to place the applicant in a line-driver job was not based on its policy of discrimination.50
B
56
The Court of Appeals' "qualification date" formula for relief did not distinguish between incumbent employees who had applied for line-driver jobs and those who had not. The appellate court held that where there has been a showing of classwide discriminatory practices coupled with a seniority system that perpetuates the effects of that discrimination, an individual member of the class need not show that he unsuccessfully applied for the position from which the class had been excluded. In support of its award of relief to all nonapplicants, the Court suggested that "as a practical matter . . . a member of the affected class may well have concluded that an application for transfer to an all White position such as (line driver) was not worth the candle." 517 F.2d, at 320.
57
The company contends that a grant of retroactive seniority to these nonapplicants is inconsistent with the make-whole purpose of a Title VII remedy and impermissibly will require the company to give preferential treatment to employees solely because of their race. The thrust of the company's contention is that unless a minority-group employee actually applied for a line-driver job, either for initial hire or for transfer, he has suffered no injury from whatever discrimination might have been involved in the refusal of such jobs to those who actually applied for them.
58
The Government argues in response that there should be no "immutable rule" that nonapplicants are nonvictims, and contends that a determination whether nonapplicants have suffered from unlawful discrimination will necessarily vary depending on the circumstances of each particular case. The Government further asserts that under the specific facts of this case, the Court of Appeals correctly determined that all qualified nonapplicants were likely victims and were therefore presumptively entitled to relief.
59
The question whether seniority relief may be awarded to nonapplicants was left open by our decision in Franks, since the class at issue in that case was limited to "identifiable applicants who were denied employment . . . after the effective date . . . of Title VII." 424 U.S., at 750, 96 S.Ct., at 1257. We now decide that an incumbent employee's failure to apply for a job is not an inexorable bar to an award of retroactive seniority. Individual nonapplicants must be given an opportunity to undertake their difficult task of proving that they should be treated as applicants and therefore are presumptively entitled to relief accordingly.
60
(1)
61
Analysis of this problem must begin with the premise that the scope of a district court's remedial powers under Title VII is determined by the purposes of the Act. Albemarle Paper Co. v. Moody, 422 U.S., at 417, 95 S.Ct., at 2371. In Griggs v. Duke Power Co., and again in Albemarle, the Court noted that a primary objective of Title VII is prophylactic: to achieve equal employment opportunity and to remove the barriers that have operated to favor white male employees over other employees. 401 U.S., at 429-430, 91 S.Ct., at 852-853; 422 U.S., at 417, 95 S.Ct., at 2371. The prospect of retroactive relief for victims of discrimination serves this purpose by providing the " 'spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges' " of their discriminatory practices. Id., at 417-418, 95 S.Ct., at 2371-2372. An equally important purpose of the Act is "to make persons whole for injuries suffered on account of unlawful employment discrimination." Id., at 418, 95 S.Ct., at 2372. In determining the specific remedies to be afforded, a district court is "to fashion such relief as the particular circumstances of a case may require to effect restitution." Franks, 424 U.S., at 764, 96 S.Ct., at 1264.
62
Thus, the Court has held that the purpose of Congress in vesting broad equitable powers in Title VII courts was "to make possible the 'fashion(ing) (of) the most complete relief possible,' " and that the district courts have " 'not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.' " Albemarle, supra, 422 U.S., at 421, 418, 95 S.Ct., at 2373. More specifically, in Franks we decided that a court must ordinarily award a seniority remedy unless there exist reasons for denying relief " 'which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination . . . and making persons whole for injuries suffered.' " 424 U.S., at 771, 96 S.Ct., at 1267, quoting Albemarle, supra, 422 U.S., at 421, 95 S.Ct., at 2373.
63
Measured against these standards, the company's assertion that a person who has not actually applied for a job can never be awarded seniority relief cannot prevail. The effects of and the injuries suffered from discriminatory employment practices are not always confined to those who were expressly denied a requested employment opportunity. A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection.
64
If an employer should announce his policy of discrimination by a sign reading "Whites Only" on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs. The same message can be communicated to potential applicants more subtly but just as clearly by an employer's actual practices by his consistent discriminatory treatment of actual applicants, by the manner in which he publicizes vacancies, his recruitment techniques, his responses to casual or tentative inquiries, and even by the racial or ethnic composition of that part of his work force from which he has discriminatorily excluded members of minority groups.51 When a person's desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application.
65
In cases decided under the National Labor Relations Act, the model for Title VII's remedial provisions, Albemarle, supra, 422 U.S., at 419, 95 S.Ct., at 2372; Franks, supra, 424 U.S., at 769, 96 S.Ct., at 1266, the National Labor Relations Board, and the courts in enforcing its orders, have recognized that the failure to submit a futile application does not bar an award of relief to a person claiming that he was denied employment because of union affiliation or activity. In NLRB v. Nevada Consolidated Copper Corp., 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305, this Court enforced an order of the Board directing an employer to hire, with retroactive benefits, former employees who had not applied for newly available jobs because of the employer's well-known policy of refusing to hire union members. See In re Nevada Consolidated Copper Corp., 26 N.L.R.B. 1182, 1208, 1231. Similarly, when an application would have been no more than a vain gesture in light of employer discrimination, the Courts of Appeals have enforced Board orders reinstating striking workers despite the failure of individual strikers to apply for reinstatement when the strike ended. E. g., NLRB v. Park Edge Sheridan Meats, Inc., 323 F.2d 956 (CA2); NLRB v. Valley Die Cast Corp., 303 F.2d 64 (CA6); Eagle-Picher Mining & Smelting Co. v. NLRB, 119 F.2d 903 (CA8). See also Piasecki Aircraft Corp. v. NLRB, 280 F.2d 575 (CA3); NLRB v. Anchor Rome Mills, 228 F.2d 775 (CA5); NLRB v. Lummus Co., 210 F.2d 377 (CA5). Consistent with the NLRA model, several Courts of Appeals have held in Title VII cases that a nonapplicant can be a victim of unlawful discrimination entitled to make-whole relief when an application would have been a useless act serving only to confirm a discriminatee's knowledge that the job he wanted was unavailable to him. Acha v. Beame, 531 F.2d 648, 656 (CA2); Hairston v. McLean Trucking Co., 520 F.2d 226, 231-233 (CA4); Bing v. Roadway Express, Inc., 485 F.2d 441, 451 (CA5); United States v. N. L. Industries, Inc., 479 F.2d 354, 369 (CA8).
66
The denial of Title VII relief on the ground that the claimant had not formally applied for the job could exclude from the Act's coverage the victims of the most entrenched forms of discrimination. Victims of gross and pervasive discrimination could be denied relief precisely because the unlawful practices had been so successful as totally to deter job applications from members of minority groups. A per se prohibition of relief to nonapplicants could thus put beyond the reach of equity the most invidious effects of employment discrimination those that extend to the very hope of self-realization. Such a per se limitation on the equitable powers granted to courts by Title VII would be manifestly inconsistent with the "historic purpose of equity to 'secur(e) complete justice' " and with the duty of courts in Title VII cases " 'to render a decree which will so far as possible eliminate the discriminatory effects of the past.' " Albemarle Paper Co. v. Moody, 422 U.S., at 418, 95 S.Ct., at 2372.
67
(2)
68
To conclude that a person's failure to submit an application for a job does not inevitably and forever foreclose his entitlement to seniority relief under Title VII is a far cry, however, from holding that nonapplicants are always entitled to such relief. A nonapplicant must show that he was a potential victim of unlawful discrimination. Because he is necessarily claiming that he was deterred from applying for the job by the employer's discriminatory practices, his is the not always easy burden of proving that he would have applied for the job had it not been for those practices. Cf. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471. When this burden is met, the nonapplicant is in a position analogous to that of an applicant and is entitled to the presumption discussed in Part III-A, supra.
69
The Government contends that the evidence it presented in this case at the liability stage of the trial identified all nonapplicants as victims of unlawful discrimination "with a fair degree of specificity," and that the Court of Appeals' determination that qualified nonapplicants are presumptively entitled to an award of seniority should accordingly be affirmed. In support of this contention the Government cites its proof of an extended pattern and practice of discrimination as evidence that an application from a minority employee for a line-driver job would have been a vain and useless act. It further argues that since the class of nonapplicant discriminatees is limited to incumbent employees, it is likely that every class member was aware of the futility of seeking a line-driver job and was therefore deterred from filing both an initial and a followup application.52
70
We cannot agree. While the scope and duration of the company's discriminatory policy can leave little doubt that the futility of seeking line-driver jobs was communicated to the company's minority employees, that in itself is insufficient. The known prospect of discriminatory rejection shows only that employees who wanted line-driving jobs may have been deterred from applying for them. It does not show which of the nonapplicants actually wanted such jobs, or which possessed the requisite qualifications.53 There are differences between city- and line-driving jobs,54 for example, but the desirability of the latter is not so self-evident as to warrant a conclusion that all employees would prefer to be line drivers if given a free choice.55 Indeed, a substantial number of white city drivers who were not subjected to the company's discriminatory practices were apparently content to retain their city jobs.56
71
In order to fill this evidentiary gap, the Government argues that a nonapplicant's current willingness to transfer into a line-driver position confirms his past desire for the job. An employee's response to the court-ordered notice of his entitlement to relief57 demonstrates, according to this argument, that the employee would have sought a line-driver job when he first became qualified to fill one, but for his knowledge of the company's discriminatory policy.
72
This assumption falls short of satisfying the appropriate burden of proof. An employee who transfers into a line-driver unit is normally placed at the bottom of the seniority "board." He is thus in jeopardy of being laid off and must, at best, suffer through an initial period of bidding on only the least desirable runs. See supra, at 343-344, and n. 25. Non-applicants who chose to accept the appellate court's post hoc invitation, however, would enter the line-driving unit with retroactive seniority dating from the time they were first qualified. A willingness to accept the job security and bidding power afforded by retroactive seniority says little about what choice an employee would have made had he previously been given the opportunity freely to choose a starting line-driver job. While it may be true that many of the nonapplicant employees desired and would have applied for line-driver jobs but for their knowledge of the company's policy of discrimination, the Government must carry its burden of proof, with respect to each specific individual, at the remedial hearings to be conducted by the District Court on remand.58
C
73
The task remaining for the District Court on remand will not be a simple one. Initially, the court will have to make a substantial number of individual determinations in deciding which of the minority employees were actual victims of the company's discriminatory practices. After the victims have been identified, the court must, as nearly as possible, " 'recreate the conditions and relationships that would have been had there been no' " unlawful discrimination. Franks, 424 U.S., at 769, 96 S.Ct., at 1266. This process of recreating the past will necessarily involve a degree of approximation and imprecision. Because the class of victims may include some who did not apply for line-driver jobs as well as those who did, and because more than one minority employee may have been denied each line-driver vacancy, the court will be required to balance the equities of each minority employee's situation in allocating the limited number of vacancies that were discriminatorily refused to class members.
74
Moreover, after the victims have been identified and their rightful place determined, the District Court will again be faced with the delicate task of adjusting the remedial interests of discriminatees and the legitimate expectations of other employees innocent of any wrongdoing. In the prejudgment consent decree, see n. 4, supra, the company and the Government agreed that minority employees would assume line-driver positions that had been discriminatorily denied to them by exercising a first-priority right to job vacancies at the company's terminals. The decree did not determine what constituted a vacancy, but in its final order the trial court defined "vacancy" to exclude any position that became available while there were laid-off employees awaiting an opportunity to return to work. Employees on layoff were given a preference to fill whatever openings might occur at their terminals during a three-year period after they were laid off.59 The Court of Appeals rejected the preference and held that all but "purely temporary" vacancies were to be filled according to an employee's seniority, whether as a member of the class discriminated against or as an incumbent line driver on layoff. 517 F.2d, at 322-323.
75
As their final contention concerning the remedy, the company and the union argue that the trial court correctly made the adjustment between the competing interests of discriminatees and other employees by granting a preference to laid-off employees, and that the Court of Appeals erred in disturbing it. The petitioners therefore urge the reinstatement of that part of the trial court's final order pertaining to the rate at which victims will assume their rightful places in the line-driver hierarchy.60
76
Although not directly controlled by the Act,61 the extent to which the legitimate expectations of nonvictim employees should determine when victims are restored to their rightful place is limited by basic principles of equity. In devising and implementing remedies under Title VII, no less than in formulating any equitable decree, a court must draw on the "qualities of mercy and practicality (that) have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims." Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 592, 88 L.Ed. 754. Cf. Phelps Dodge Corp. v. NLRB, 313 U.S., at 195-196, 61 S.Ct., at 852-853, modifying 113 F.2d 202 (CA2); 19 N.L.R.B. 547, 600; Franks, supra, 424 U.S., at 798-799, 96 S.Ct., at 1280-1281 (POWELL, J., concurring in part and dissenting in part). Especially when immediate implementation of an equitable remedy threatens to impinge upon the expectations of innocent parties, the courts must "look to the practical realities and necessities inescapably involved in reconciling competing interests," in order to determine the "special blend of what is necessary, what is fair, and what is workable." Lemon v. Kurtzman, 411 U.S. 192, 200-201, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (opinion of Burger, C. J.).
77
Because of the limited facts now in the record, we decline to strike the balance in this Court. The District Court did not explain why it subordinated the interests of class members to the contractual recall expectations of other employees on layoff. When it made that determination, however, it was considering a class of more than 400 minority employees, all of whom had been granted some preference in filling line-driver vacancies. The overwhelming majority of these were in the District Court's subclass three, composed of those employees with respect to whom neither the Government nor the company had presented any specific evidence on the question of unlawful discrimination. Thus, when the court considered the problem of what constituted a line-driver "vacancy" to be offered to class members, it may have been influenced by the relatively small number of proved victims and the large number of minority employees about whom it had no information. On the other hand the Court of Appeals redefined "vacancy" in the context of what it believed to be a class of more than 400 employees who had actually suffered from discrimination at the behest of both the company and the union, and its determination may well have been influenced by that understanding. For the reasons discussed in this opinion, neither court's concept was completely valid.
78
After the evidentiary hearings to be conducted on remand, both the size and the composition of the class of minority employees entitled to relief may be altered substantially. Until those hearings have been conducted and both the number of identifiable victims and the consequent extent of necessary relief have been determined, it is not possible to evaluate abstract claims concerning the equitable balance that should be struck between the statutory rights of victims and the contractual rights of nonvictim employees. That determination is best left, in the first instance, to the sound equitable discretion of the trial court.62 See Franks v. Bowman Transportation Co., supra, 424 U.S., at 779, 96 S.Ct., at 1271; Albemarle Paper Co. v. Moody, 422 U.S., at 416, 95 S.Ct., at 2371. We observe only that when the court exercises its discretion in dealing with the problem of laid-off employees in light of the facts developed at the hearings on remand, it should clearly state its reasons so that meaningful review may be had on appeal. See Franks, supra, 424 U.S., at 774, 96 S.Ct., at 1269; Albemarle Paper Co. v. Moody, supra, 422 U.S., at 421 n. 14, 95 S.Ct., at 2373.
79
For all the reasons we have discussed, the judgment of the Court of Appeals is vacated, and the cases are remanded to the District Court for further proceedings consistent with this opinion.
80
It is so ordered.
81
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring in part and dissenting in part.
82
I agree with the Court that the United States proved that petitioner T. I. M. E.-D. C. was guilty of a pattern or practice of discriminating against blacks and Spanish-surnamed Americans in hiring line drivers. I also agree that incumbent minority-group employees who show that they applied for a line-driving job or that they would have applied but for the company's unlawful acts are presumptively entitled to the full measure of relief set forth in our decision last Term in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976).1 But I do not agree that Title VII permits petitioners to treat Negro and Spanish-surnamed line drivers differently from other drivers who were hired by the company at the same time simply because the former drivers were prevented by the company from acquiring seniority over the road. I therefore dissent from that aspect of the Court's holding, and from the limitations on the scope of the remedy that follow from it.
83
As the Court quite properly acknowledges, ante, at 349-350, the seniority provision at issue here clearly would violate Title VII absent § 703(h), 42 U.S.C. § 2000e-2(h), which exempts at least some seniority systems from the reach of the Act. Title VII prohibits an employer from "classify(ing) 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) (1970 ed., Supp. V). "Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971) (emphasis added). Petitioners' seniority system does precisely that: It awards the choicest jobs and other benefits to those possessing a credential seniority which, due to past discrimination, blacks and Spanish-surnamed employees were prevented from acquiring. Consequently, "(e)very time a Negro worker hired under the old segregated system bids against a white worker in his job slot, the old racial classification reasserts itself, and the Negro suffers anew for his employer's previous bias." Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980, 988 (CA5 1969) (Wisdom, J.), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970).
84
As the Court also concedes, with a touch of understatement, "the view that § 703(h) does not immunize seniority systems that perpetuate the effects of prior discrimination has much support." Ante, at 346 n. 28. Without a single dissent, six Courts of Appeals have so held in over 30 cases,2 and two other Courts of Appeals have indicated their agreement, also without dissent.3 In an unbroken line of cases, the Equal Employment Opportunity Commission has reached the same conclusion.4 And the overwhelming weight of scholarly opinion is in accord.5 Yet for the second time this Term, see General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), a majority of this Court overturns the unanimous conclusion of the Courts of Appeals and the EEOC concerning the scope of Title VII. Once again, I respectfully disagree.
85
* Initially, it is important to bear in mind that Title VII is a remedial statute designed to eradicate certain invidious employment practices. The evils against which it is aimed are defined broadly: "to fail . . . to hire or to discharge . . . or otherwise to discriminate . . . with respect to . . . compensation, terms, conditions, or privileges of employment," and "to limit, segregate, or classify . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status." 42 U.S.C. § 2000e-2(a) (1970 ed., Supp. V) (emphasis added). Section 703(h) carves out an exemption from these broad prohibitions. Accordingly, under longstanding principles of statutory construction, the Act should "be given a liberal interpretation . . . (and) exemptions from its sweep should be narrowed and limited to effect the remedy intended." Piedmont & Northern R. Co. v. ICC, 286 U.S. 299, 311-312, 52 S.Ct. 541, 545 (1932); see also Spokane & Inland R. Co. v. United States, 241 U.S. 344, 350, 36 S.Ct. 668, 671, 60 L.Ed. 1037, 76 L.Ed. 1115 (1916); United States v. Dickson, 15 Pet. 141, 165, 10 L.Ed. 689 (1841) (Story, J.). Unless a seniority system that perpetuates discrimination falls "plainly and unmistakably within (the) terms and spirit" of § 703(h), A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945), the system should be deemed unprotected. I submit that whatever else may be true of the section, its applicability to systems that perpetuate past discrimination is not "plainly and unmistakably" clear.
86
The language of § 703(h) provides anything but clear support for the Court's holding. That section provides, in pertinent part:
87
"(I)t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions or privileges of employment pursuant to a bona fide seniority . . . system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex or national origin . . . ." (Emphasis added.)
88
In this case, however, the different "privileges of employment" for Negroes and Spanish-surnamed Americans, on the one hand, and for all others, on the other hand, produced by petitioners' seniority system are precisely the result of prior, intentional discrimination in assigning jobs; but for that discrimination, Negroes and Spanish-surnamed Americans would not be disadvantaged by the system. Thus, if the proviso is read literally, the instant case falls squarely within it, thereby rendering § 703(h) inapplicable. To avoid this result the Court is compelled to reconstruct the proviso to read: provided that such a seniority system "did not have its genesis in racial discrimination, and that it was negotiated and has been maintained free from any illegal purpose." Ante, at 356.
89
There are no explicit statements in the legislative history of Title VII that warrant this radical reconstruction of the proviso. The three documents placed in the Congressional Record by Senator Clark concerning seniority all were written many weeks before the Mansfield-Dirksen amendment containing § 703(h) was introduced. Accordingly, they do not specifically discuss the meaning of the proviso.6 More importantly, none of the documents addresses the general problem of seniority systems that perpetuate discrimination. Not surprisingly, Congress simply did not think of such subtleties in enacting a comprehensive, pathbreaking Civil Rights Act.7 To my mind, this is dispositive. Absent unambiguous statutory language or an authoritative statement in the legislative history legalizing seniority systems that continue past wrongs, I do not see how it can be said that the § 703(h) exemption "plainly and unmistakably" applies.
II
90
Even if I were to agree that this case properly can be decided on the basis of inferences as to Congress' intent, I still could not accept the Court's holding. In my view, the legislative history of the 1964 Civil Rights Act does not support the conclusion that Congress intended to legalize seniority systems that perpetuate discrimination, and administrative and legislative developments since 1964 positively refute that conclusion.
A.
91
The Court's decision to uphold seniority systems that perpetuate post-Act discrimination that is, seniority systems that treat Negroes and Spanish-surnamed Americans who become line drivers as new employees even though, after the effective date of Title VII, these persons were discriminatorily assigned to city-driver jobs where they accumulated seniority is explained in a single footnote. Ante, at 348 n. 30. That footnote relies almost entirely on United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571. But like the instant decision, Evans is devoid of any analysis of the legislative history of § 703(h); it simply asserts its conclusion in a single paragraph. For the Court to base its decision here on the strength of Evans is sheer bootstrapping.
92
Had the Court objectively examined the legislative history, it would have been compelled to reach the opposite conclusion. As we stated just last Term, "it is apparent that the thrust of (§ 703(h)) is directed toward defining what is and what is not an illegal discriminatory practice in instances in which the post-Act operation of a seniority system is challenged as perpetuating the effects of discrimination occurring prior to the effective date of the Act."8 Franks v. Bowman Transportation Co., 424 U.S., at 761, 96 S.Ct., at 1263 (emphasis added). Congress was concerned with seniority expectations that had developed prior to the enactment of Title VII, not with expectations arising thereafter to the extent that those expectations were dependent on whites benefiting from unlawful discrimination. Thus, the paragraph of the Clark-Case Interpretive Memorandum dealing with seniority systems begins:
93
"Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective." 110 Cong.Rec. 7213 (1964) (emphasis added).
94
Similarly, the Justice Department memorandum that Senator Clark introduced explains:
95
"Title VII would have no effect on seniority rights existing at the time it takes effect. If, for example a collective bargaining contract provides that in the event of layoffs, those who were hired last must be laid off first, such a provision would not be affected . . . by title VII. This would be true even in the case where owing to discrimination prior to the effective date of the title, white workers had more seniority than Negroes. . . . Any differences in treatment based on established seniority rights would not be based on race and would not be forbidden by the title." Id., at 7207 (emphasis added).
96
Finally, Senator Clark's prepared answers to questions propounded by Senator Dirksen stated:
97
"Question. If an employer is directed to abolish his employment list because of discrimination what happens to seniority?
98
"Answer. The bill is not retroactive, and it will not require an employer to change existing seniority lists." Id., at 7217 (emphasis added).
99
For the Court to ignore this history while reaching a conclusion contrary to it is little short of remarkable.
B
100
The legislative history of § 703(h) admittedly affords somewhat stronger support for the Court's conclusion with respect to seniority systems that perpetuate pre-Act discrimination that is, seniority systems that treat Negroes and Spanish-Surnamed Americans who become line drivers as new employees even though these persons were discriminatorily assigned to city-driver jobs where they accumulated seniority before the effective date of Title VII. In enacting § 703(h), Congress intended to extend at least some protection to seniority expectations that had developed prior to the effective date of the Act. But the legislative history is very clear that the only threat to these expectations that Congress was seeking to avert was nonremedial, fictional seniority. Congress did not want minority group members who were hired after the effective date of the Act to be given superseniority simply because they were members of minority groups, nor did it want the use of seniority to be invalidated whenever it had a disparate impact on newly hired minority employees. These are the evils and the only evils that the opponents of Title VII raised9 and that the Clark-Case Interpretive Memorandum addressed.10 As the Court acknowledges, "there seems to be no explicit reference in the legislative history to pre-Act discriminatees already employed in less desirable jobs." Ante, at 354.
101
Our task, then, assuming still that the case properly can be decided on the basis of imputed legislative intent, is "to put to ourselves the question, which choice is it the more likely that Congress would have made," Burnet v. Guggenheim, 288 U.S. 280, 285, 53 S.Ct. 369, 371, 77 L.Ed. 513 (1933) (Cardozo, J.), had it focused on the problem: would it have validated or invalidated seniority systems that perpetuate pre-Act discrimination? To answer that question, the devastating impact of today's holding validating such systems must be fully understood. Prior to 1965 blacks and Spanish-surnamed Americans who were able to find employment were assigned the lowest paid, most menial jobs in many industries throughout the Nation but especially in the South. In many factories, blacks were hired as laborers while whites were trained and given skilled positions;11 in the transportation industry blacks could only become porters;12 and in steel plants blacks were assigned to the coke ovens and blasting furnaces, "the hotter and dirtier" places of employment.13 The Court holds, in essence, that while after 1965 these incumbent employees are entitled to an equal opportunity to advance to more desirable jobs, to take advantage of that opportunity they must pay a price: they must surrender the seniority they have accumulated in their old jobs. For many, the price will be too high, and they will be locked into their previous positions.14 Even those willing to pay the price will have to reconcile themselves to being forever behind subsequently hired whites who were not discriminatorily assigned. Thus equal opportunity will remain a distant dream for all incumbent employees.
102
I am aware of nothing in the legislative history of the 1964 Civil Rights Act to suggest that if Congress had focused on this fact it nonetheless would have decided to write off an entire generation of minority-group employees. Nor can I believe that the Congress that enacted Title VII would have agreed to postpone for one generation the achievement of economic equality. The backers of that Title viewed economic equality as both a practical necessity and a moral imperative.15 They were well aware of the corrosive impact employment discrimination has on its victims, and on society generally.16 They sought, therefore, "to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens"; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973); see also Griggs v. Duke Power Co., 401 U.S., at 429-431, 91 S.Ct., at 852-853; Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974); and "to make persons whole for injuries suffered on account of unlawful employment discrimination," Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). In short, Congress wanted to enable black workers to assume their rightful place in society.
103
It is, of course, true that Congress was not willing to invalidate seniority systems on a wholesale basis in pursuit of that goal.17 But the United States, as the plaintiff suing on behalf of the incumbent minority group employees here, does not seek to overturn petitioners' seniority system. It seeks only to have the "time actually worked in (minority group) jobs (recognized) as the equal of (the majority group's) time," Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d, at 995, within the existing seniority system. Admittedly, such recognition would impinge on the seniority expectations white employees had developed prior to the effective date of the Act. But in enacting Title VII, Congress manifested a willingness to do precisely that. For example, the Clark-Case Interpretive Memorandum, see n. 6, supra, makes clear that Title VII prohibits unions and employers from using discriminatory waiting lists, developed prior to the effective date of the Title, in making selections for jobs or training programs after that date. 110 Cong.Rec. 7213 (1964). Such a prohibition necessarily would disrupt the expectations of those on the lists. More generally, the very fact that Congress made Title VII effective shortly after its enactment demonstrates that expectations developed prior to passage of the Act were not considered sacrosanct, since Title VII's general ban on employment discrimination inevitably interfered with the pre-existing expectations of whites who anticipated benefiting from continued discrimination. Thus I am in complete agreement with Judge Butzner's conclusion in his seminal decision in Quarles v. Philip Morris, Inc., 279 F.Supp. 505, 516 (ED Va.1968): "It is . . . apparent that Congress did not intend to freeze an entire generation of Negro employees into discriminatory patterns that existed before the Act."18
C
104
If the legislative history of § 703(h) leaves any doubt concerning the section's applicability to seniority systems that perpetuate either pre- or post-Act discrimination, that doubt is entirely dispelled by two subsequent developments. The Court all but ignores both developments; I submit they are critical.
105
First, in more than a score of decisions beginning at least as early as 1969, the Equal Employment Opportunity Commission has consistently held that seniority systems that perpetuate prior discrimination are unlawful.19 While the Court may have retreated, see General Electric Co. v. Gilbert, 429 U.S. 125, 141-142, 97 S.Ct. 401, 410-411, 50 L.Ed.2d 343 (1976), from its prior view that the interpretations of the EEOC are " 'entitled to great deference,' " Albemarle Paper Co. v. Moody, supra, 422 U.S., at 431, 95 S.Ct., at 2378, quoting Griggs v. Duke Power Co., supra, 401 U.S., at 434, 91 S.Ct., at 855; I have not. Before I would sweep aside the EEOC's consistent interpretation of the statute it administers, I would require " 'compelling indications that it is wrong.' " Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94-95, 94 S.Ct. 334, 339, 38 L.Ed.2d 287 (1973), quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969). I find no such indications in the Court's opinion.
106
Second, in 1972 Congress enacted the Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103, amending Title VII. In so doing, Congress made very clear that it approved of the lower court decisions invalidating seniority systems that perpetuate discrimination. That Congress was aware of such cases is evident from the Senate and House Committee Reports which cite the two leading decisions, as well as several prominent law review articles. S.Rep. No. 92-415, p. 5 n.1 (1971); H.R.Rep. No. 92-238, p. 8 n. 2 (1971). Although Congress took action with respect to other lower court opinions with which it was dissatisfied,20 it made no attempt to overrule the seniority cases. To the contrary, both the Senate and House Reports expressed approval of the "perpetuation principle" as applied to seniority systems21 and invoked the principle to justify the Committees' recommendations to extend Title VII's coverage to state and local government employees,22 and to expand the powers of the EEOC.23 Moreover, the Section-by-Section Analysis of the Conference Committee bill, which was prepared and placed in the Congressional Record by the floor managers of the bill, stated in "language that could hardly be more explicit," Franks v. Bowman Transportation Co., 424 U.S., at 765 n. 21, 96 S.Ct., at 1264, that, "in any areas where a specific contrary intention is not indicated, it was assumed that the present case law . . . would continue to govern the applicability and construction of Title VII." 118 Cong.Rec. 7166, 7564 (1972). And perhaps most important, in explaining the section of the 1972 Act that empowers the EEOC "to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3," 42 U.S.C. § 2000e-5(a) (1970 ed., Supp. V), the Section-by-Section Analysis declared:
107
"The unlawful employment practices encompassed by sections 703 and 704 which were enumerated in 1964 by the original Act, and as defined and expanded by the courts, remain in effect." 118 Cong.Rec. 7167, 7564 (1972) (emphasis added).24
108
We have repeatedly held: "When several acts of Congress are passed touching the same subject matter, subsequent legislation may be considered to assist in the interpretation of prior legislation upon the same subject." Tiger v. Western Investment Co., 221 U.S. 286, 309, 31 S.Ct. 578, 584, 55 L.Ed. 738 (1911); see NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, 94 S.Ct. 1757, 1762, 40 L.Ed.2d 134 (1974) (subsequent legislation entitled to "significant weight"); Red Lion Broadcasting Co. v. FCC, 395 U.S., at 380, 89 S.Ct., at 1801; United States v. Stafoff, 260 U.S. 477, 480, 43 S.Ct. 197, 199, 67 L.Ed. 358 (1923) (Holmes, J.); New York & Norfolk R. Co. v. Peninsula Produce Exchange, 240 U.S. 34, 39, 36 S.Ct. 230, 232, 60 L.Ed. 511 (1916) (Hughes, J.); United States v. Weeks, 5 Cranch 1, 8, 3 L.Ed. 19 (1809). Earlier this Term, we implicitly followed this canon in using a statute passed in 1976 to conclude that the Administrative Procedure Act, 5 U.S.C. §§ 701-706, enacted in 1946, was not intended as an independent grant of jurisdiction to the federal courts. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The canon is particularly applicable here for two reasons. First, because there is no explicit legislative history discussing seniority systems that perpetuate discrimination, we are required to " '(seize) every thing from which aid can be derived . . .,' " Brown v. GSA, 425 U.S. 820, 825, 96 S.Ct. 1961, 1964, 48 L.Ed.2d 402 (1976), quoting, United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805), if we are to reconstruct congressional intent. Second, because petitioners' seniority system was readopted in collective-bargaining agreements signed after the 1972 Act took effect, any retroactivity problems that ordinarily inhere in using a later Act to interpret an earlier one are not present here. Cf. Stockdale v. Insurance Cos., 20 Wall. 323, 331-332, 22 L.Ed. 348 (1874). Thus, the Court's bald assertion that the intent of the Congress that enacted the 1972 Act is "entitled to little if any weight," ante, at 354 n. 39, in construing § 703(h) is contrary to both principle and precedent.
109
Only last Term, we concluded that the legislative materials reviewed above "completely (answer) the argument that Congress somehow intended seniority relief to be less available" than backpay as a remedy for discrimination. Franks v. Bowman Transportation Co., supra, 424 U.S., at 765 n. 21, 96 S.Ct., at 1264. If anything, the materials provide an even more complete answer to the argument that Congress somehow intended to immunize seniority systems that perpetuate past discrimination. To the extent that today's decision grants immunity to such systems, I respectfully dissent.
1
At the time of suit the statute provided as follows:
"(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described."
Section 707 was amended by § 5 of the Equal Employment Opportunity Act of 1972, 86 Stat. 107, 42 U.S.C. § 2000e-6(c) (1970 ed., Supp. V), to give the Equal Employment Opportunity Commission, rather than the Attorney General, the authority to bring "pattern or practice" suits under that section against private-sector employers. In 1974, an order was entered in this action substituting the EEOC for the United States but retaining the United States as a party for purposes of jurisdiction, appealability, and related matters. See 42 U.S.C. § 2000e-6(d) (1970 ed., Supp. V).
2
The named defendant in this suit was T.I.M.E. Freight, Inc., a predecessor of T.I.M.E.-D.C., Inc. T.I.M.E.-D.C., Inc., is a nationwide system produced by 10 mergers over a 17-year period. See United States v. T.I.M.E.-D.C., Inc., 517 F.2d 299, 304, and n. 6 (CA5). It currently has 51 terminals and operates in 26 States and three Canadian Provinces.
3
Line drivers, also known as over-the-road drivers, engage in long-distance hauling between company terminals. They compose a separate bargaining unit at the company. Other distinct bargaining units include servicemen, who service trucks, unhook tractors and trailers, and perform similar tasks; and city operations, composed of dockmen, hostlers, and city drivers who pick up and deliver freight within the immediate area of a particular terminal. All of these employees were represented by the petitioner union.
4
Following the receipt of evidence, but before decision, the Government and the company consented to the entry of a Decree in Partial Resolution of Suit. The consent decree did not constitute an adjudication on the merits. The company agreed, however, to undertake a minority recruiting program; to accept applications from all Negroes and Spanish-surnamed Americans who inquired about employment, whether or not vacancies existed, and to keep such applications on file and notify applicants of job openings; to keep specific employment and recruiting records open to inspection by the Government and to submit quarterly reports to the District Court; and to adhere to certain uniform employment qualifications respecting hiring and promotion to line driver and other jobs.
The decree further provided that future job vacancies at any company terminal would be filled first "(b)y those persons who may be found by the Court, if any, to be individual or class discriminatees suffering the present effects of past discrimination because of race or national origin prohibited by Title VII of the Civil Rights Act of 1964." Any remaining vacancies could be filled by "any other persons," but the company obligated itself to hire one Negro or Spanish-surnamed person for every white person hired at any terminal until the percentage of minority workers at that terminal equaled the percentage of minority group members in the population of the metropolitan area surrounding the terminal. Finally, the company agreed to pay $89,500 in full settlement of any backpay obligations. Of this sum, individual payments not exceeding $1,500 were to be paid to "alleged individual and class discriminatees" identified by the Government.
The Decree in Partial Resolution of Suit narrowed the scope of the litigation, but the District Court still had to determine whether unlawful discrimination had occurred. If so, the court had to identify the actual discriminatees entitled to fill future job vacancies under the decree. The validity of the collective-bargaining contract's seniority system also remained for decision, as did the question whether any discriminatees should be awarded additional equitable relief such as retroactive seniority.
5
The District Court's memorandum decision is reported at 6 FEP Cases 690 (1974) and 6 EPD P 8979 (1973-1974).
6
The Government did not seek relief for Negroes and Spanish-surnamed Americans hired at a particular terminal after the date on which that terminal first employed a minority group member as a line driver.
7
See n. 4, supra.
8
If an employee in this class had joined the company after July 2, 1965, then the date of his initial employment rather than the effective date of Title VII was to determine his competitive seniority.
9
As with the other subclasses, there were a few individuals in the third group who were found to have been discriminated against with respect to jobs other than line driver. There is no need to discuss them separately in this opinion.
10
This provision of the decree was qualified in one significant respect. Under the Southern Conference Area Over-the-Road Supplemental Agreement between the employer and the union, line drivers employed at terminals in certain Southern States work under a "modified" seniority system. Under the modified system an employee's seniority is not confined strictly to his home terminal. If he is laid off at his home terminal he can move to another terminal covered by the Agreement and retain his seniority, either by filling a vacancy at the other terminal or by "bumping" a junior line driver out of his job if there is no vacancy. The modified system also requires that any new vacancy at a covered terminal be offered to laid-off line drivers at all other covered terminals before it is filled by any other person. The District Court's final decree, as amended slightly by the Court of Appeals, 517 F.2d 299, 323, altered this system by requiring that any vacancy be offered to all members of all three subclasses before it may be filled by laid-off line drivers from other terminals.
11
Although the opinion of the Court of Appeals in this case did not specifically mention the requirement that a vacancy exist, it is clear from earlier and later opinions of that court that this requirement is a part of the Fifth Circuit's "qualification date" formula. See, e. g., Rodriquez v. East Texas Motor Freight, 505 F.2d 40, 63 n. 29, rev'd on other grounds, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453, cited in 517 F.2d, at 318 n. 35; Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 731-734.
12
For example, if a class member began his tenure with the company on January 1, 1966, at which time he was qualified as a line driver and a line-driving vacancy existed, his competitive seniority upon becoming a line driver would date back to January 1, 1966. If he became qualified or if a vacancy opened up only at a later date, then that later date would be used.
13
The Court of Appeals also approved (with slight modification) the part of the District Court's order that allowed class members to fill vacancies at a particular terminal ahead of line drivers laid off at other terminals. See n. 10, supra.
14
Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a) (1970 ed. and Supp. V), provides:
"(a) It shall be an unlawful employment practice for an employer
"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
"(2) to limit, segregate, or classify his employees or applicants for employment 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."
15
"Disparate treatment" such as is alleged in the present case is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. See, e. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-266, 97 S.Ct. 555, 563-565, 50 L.Ed.2d 450. Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII. See, e. g., 110 Cong.Rec. 13088 (1964) (remarks of Sen. Humphrey) ("What the bill does . . . is simply to make it an illegal practice to use race as a factor in denying employment. It provides that men and women shall be employed on the basis of their qualifications, not as Catholic citizens, not as Protestant citizens, not as Jewish citizens, not as colored citizens, but as citizens of the United States").
Claims of disparate treatment may be distinguished from claims that stress "disparate impact." The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. See infra, at 349. Proof of discriminatory motive, we have held, is not required under a disparate-impact theory. Compare, e. g., Griggs v. Duke Power Co., 401 U.S. 424, 430-432, 91 S.Ct. 849, 853-854, 28 L.Ed.2d 158, with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-806, 93 S.Ct. 1817, 1824-1826, 36 L.Ed.2d 668. See generally B. Schlei & P. Grossman, Employment Discrimination Law 1-12 (1976); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination, 71 Mich.L.Rev. 59 (1972). Either theory may, of course, be applied to a particular set of facts.
16
The "pattern or practice" language in § 707(a) of Title VII, supra, at 1830 n. 1, was not intended as a term of art, and the words reflect only their usual meaning. Senator Humphrey explained:
"(A) pattern or practice would be present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature. There would be a pattern or practice if, for example, a number of companies or persons in the same industry or line of business discriminated, if a chain of motels or restaurants practiced racial discrimination throughout all or a significant part of its system, or if a company repeatedly and regularly engaged in acts prohibited by the statute.
"The point is that single, insignificant, isolated acts of discrimination by a single business would not justify a finding of a pattern or practice . . . ." 110 Cong.Rec. 14270 (1964).
This interpretation of "pattern or practice" appears throughout the legislative history of § 707(a), and is consistent with the understanding of the identical words as used in similar federal legislation. See 110 Cong.Rec. 12946 (1964) (remarks of Sen. Magnuson) (referring to § 206(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-5); 110 Cong.Rec. 13081 (1964) (remarks of Sen. Case); id., at 14239 (remarks of Sen. Humphrey); id., at 15895 (remarks of Rep. Celler). See also United States v. Jacksonville Terminal Co., 451 F.2d 418, 438, 441 (CA5); United States v. Ironworkers Local 86, 443 F.2d 544, 552 (CA9); United States v. West Peachtree Tenth Corp., 437 F.2d 221, 227 (CA5); United States v. Mayton, 335 F.2d 153, 158-159 (CA5).
17
In Atlanta, for instance, Negroes composed 22.35% of the population in the surrounding metropolitan area and 51.31% of the population in the city proper. The company's Atlanta terminal employed 57 line drivers. All were white. In Los Angeles, 10.84% of the greater metropolitan population and 17.88% of the city population were Negro. But at the company's two Los Angeles terminals there was not a single Negro among the 374 line drivers. The proof showed similar disparities in San Francisco, Denver, Nashville, Chicago, Dallas, and at several other terminals.
18
Although line-driver jobs pay more than other jobs, and the District Court found them to be "considered the most desirable of the driving jobs," it is by no means clear that all employees, even driver employees, would prefer to be line drivers. See infra, at 369-370, and n. 55. Of course, Title VII provides for equal opportunity to compete for any job, whether it is thought better or worse than another. See, e. g., United States v. Hayes Int'l Corp., 456 F.2d 112, 118 (CA5); United States v. National Lead Co., 438 F.2d 935, 939 (CA8).
19
Two examples are illustrative:
George Taylor, a Negro, worked for the company as a city driver in Los Angeles, beginning late in 1966. In 1968, after hearing that a white city driver had transferred to a line-driver job, he told the terminal manager that he also would like to consider line driving. The manager replied that there would be "a lot of problems on the road . . . with different people, Caucasian, et cetera," and stated: "I don't feel that the company is ready for this right now. . . . Give us a little time. It will come around, you know." Mr. Taylor made similar requests some months later and got similar responses. He was never offered a line-driving job or an application.
Feliberto Trujillo worked as a dockman at the company's Denver terminal. When he applied for a line-driver job in 1967, he was told by a personnel officer that he had one strike against him. He asked what that was and was told: "You're a Chicano, and as far as we know, there isn't a Chicano driver in the system."
20
Petitioners argue that statistics, at least those comparing the racial composition of an employer's work force to the composition of the population at large, should never be given decisive weight in a Title VII case because to do so would conflict with § 703(j) of the Act, 42 U.S.C. § 2000e-2(j). That section provides:
"Nothing contained in this subchapter shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race . . . or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race . . . or national origin employed by any employer . . . in comparison with the total number or percentage of persons of such race . . . or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area."
The argument fails in this case because the statistical evidence was not
offered or used to support an erroneous theory that Title VII requires an employer's work force to be racially balanced. Statistics showing racial or ethnic imbalance are probative in a case such as this one only because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though § 703(j) makes clear that Title VII imposes no requirement that a work force mirror the general population. See, e. g., United States v. Sheet Metal Workers Local 36, 416 F.2d 123, 127 n. 7 (CA8). Considerations such as small sample size may, of course, detract from the value of such evidence, see, e. g., Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620-621, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630, and evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants would also be relevant. Ibid. See generally Schlei & Grossman, supra, n. 15, at 1161-1193.
"Since the passage of the Civil Rights Act of 1964, the courts have frequently relied upon statistical evidence to prove a violation. . . . In many cases the only available avenue of proof is the use of racial statistics to uncover clandestine and covert discrimination by the employer or union involved." United States v. Ironworkers Local 86, 443 F.2d, at 551. See also, e. g., Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 225 n. 34 (CA5); Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 1377, 1382 (CA4); United States v. Jacksonville Terminal Co., 451 F.2d, at 442; Parham v. Southwestern Bell Tel. Co., 433 F.2d 421, 426 (CA8); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (CA10).
21
Between July 2, 1965, and January 1, 1969, hundreds of line drivers were hired systemwide, either from the outside or from the ranks of employees filling other jobs within the company. None was a Negro. Government Exhibit 204.
22
For example, in 1971 the company hired 116 new line drivers, of whom 16 were Negro or Spanish-surnamed Americans. Minority employees composed 7.1% of the company's systemwide work force in 1967 and 10.5% in 1972. Minority hiring increased greatly in 1972 and 1973, presumably due at least in part to the existence of the consent decree. See 517 F.2d, at 316 n. 31.
23
The company's narrower attacks upon the statistical evidence that there was no precise delineation of the areas referred to in the general population statistics, that the Government did not demonstrate that minority populations were located close to terminals or that transportation was available, that the statistics failed to show what portion of the minority population was suited by age, health, or other qualifications to hold trucking jobs, etc. are equally lacking in force. At best, these attacks go only to the accuracy of the comparison between the composition of the company's work force at various terminals and the general population of the surrounding communities. They detract little from the Government's further showing that Negroes and Spanish-surnamed Americans who were hired were overwhelmingly excluded from line-driver jobs. Such employees were willing to work, had access to the terminal, were healthy and of working age, and often were at least sufficiently qualified to hold city-driver jobs. Yet they became line drivers with far less frequency than whites. See, e. g., Pretrial Stipulation 14, summarized in 517 F.2d, at 312 n. 24 (of 2,919 whites who held driving jobs in 1971, 1,802 (62%) were line drivers and 1,117 (38%) were city drivers; of 180 Negroes and Spanish-surnamed Americans who held driving jobs, 13 (7%) were line drivers and 167 (93%) were city drivers).
In any event, fine tuning of the statistics could not have obscured the glaring absence of minority line drivers. As the Court of Appeals remarked, the company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero." Id., at 315.
24
The company's evidence, apart from the showing of recent changes in hiring and promotion policies, consisted mainly of general statements that it hired only the best qualified applicants. But "affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion." Alexander v. Louisiana, 405 U.S. 625, 632, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536.
The company also attempted to show that all of the witnesses who testified to specific instances of discrimination either were not discriminated against or suffered no injury. The Court of Appeals correctly ruled that the trial judge was not bound to accept this testimony and that it committed no error by relying instead on the other overpowering evidence in the case. 517 F.2d, at 315. The Court of Appeals was also correct in the view that individual proof concerning each class member's specific injury was appropriately left to proceedings to determine individual relief. In a suit brought by the Government under § 707(a) of the Act the District Court's initial concern is in deciding whether the Government has proved that the defendant has engaged in a pattern or practice of discriminatory conduct. See infra, at 360-362.
25
Certain long-distance runs, for a variety of reasons, are more desirable than others. The best runs are chosen by the line drivers at the top of the "board" a list of drivers arranged in order of their bargaining-unit seniority.
26
Both bargaining-unit seniority and company seniority rights are generally limited to service at one particular terminal, except as modified by the Southern Conference Area Over-the-Road Supplemental Agreement. See n. 10, supra.
27
An example would be a Negro who was qualified to be a line driver in 1958 but who, because of his race, was assigned instead a job as a city driver, and is allowed to become a line driver only in 1971. Because he loses his competitive seniority when he transfers jobs, he is forever junior to white line drivers hired between 1958 and 1970. The whites, rather than the Negro, will henceforth enjoy the preferable runs and the greater protection against layoff. Although the original discrimination occurred in 1958 before the effective date of Title VII the seniority system operates to carry the effects of the earlier discrimination into the present.
28
Concededly, the view that § 703(h) does not immunize seniority systems that perpetuate the effects of prior discrimination has much support. It was apparently first adopted in Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (ED Va.). The court there held that "a departmental seniority system that has its genesis in racial discrimination is not a bona fide seniority system." Id., at 517 (first emphasis added). The Quarles view has since enjoyed wholesale adoption in the Courts of Appeals. See, e. g., Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980, 987-988 (CA5); United States v. Sheet Metal Workers Local 36, 416 F.2d, at 133-134, n. 20; United States v. Bethlehem Steel Corp., 446 F.2d 652, 658-659 (CA2); United States v. Chesapeake & Ohio R. Co., 471 F.2d 582, 587-588 (CA4). Insofar as the result in Quarles and in the cases that followed it depended upon findings that the seniority systems were themselves "racially discriminatory" or had their "genesis in racial discrimination," 279 F.Supp., at 517, the decisions can be viewed as resting upon the proposition that a seniority system that perpetuates the effects of pre-Act discrimination cannot be bona fide if an intent to discriminate entered into its very adoption.
29
Article 38 of the National Master Freight Agreement between the company and the union in effect as of the date of the systemwide lawsuit provided:
"The Employer and the Union agree not to discriminate against any individual with respect to his hiring, compensation, terms or conditions of employment because of such individual's race, color, religion, sex, or national origin, nor will they limit, segregate or classify employees in any way to deprive any individual employee of employment opportunities because of his race, color, religion, sex, or national origin."
Any discrimination by the company would apparently be a "grievable" breach of this provision of the contract.
30
The legality of the seniority system insofar as it perpetuates post-Act discrimination nonetheless remains at issue in this case, in light of the injunction entered against the union. See supra, at 331. Our decision today in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571, is largely dispositive of this issue. Evans holds that the operation of a seniority system is not unlawful under Title VII even though it perpetuates post-Act discrimination that has not been the subject of a timely charge by the discriminatee. Here, of course, the Government has sued to remedy the post-Act discrimination directly, and there is no claim that any relief would be time barred. But this is simply an additional reason not to hold the seniority system unlawful, since such a holding would in no way enlarge the relief to be awarded. See Franks v. Bowman, Transportation Co., 424 U.S. 747, 778-779, 96 S.Ct. 1251, 1271, 47 L.Ed.2d 444. Section 703(h) on its face immunizes all bona fide seniority systems, and does not distinguish between the perpetuation of pre- and post-Act discrimination.
31
We also noted in McDonnell Douglas :
"There are societal as well as personal interests on both sides of this (employer-employee) equation. The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise." 411 U.S., at 801, 93 S.Ct., at 1823.
32
Local 53 Asbestos Workers v. Vogler, 407 F.2d 1047 (CA5), provides an apt illustration. There a union had a policy of excluding persons not related to present members by blood or marriage. When in 1966 suit was brought to challenge this policy, all of the union's members were white, largely as a result of pre-Act, intentional racial discrimination. The court observed: "While the nepotism requirement is applicable to black and white alike and is not on its face discriminatory, in a completely white union the present effect of its continued application is to forever deny to negroes and Mexican-Americans any real opportunity for membership." Id., at 1054.
33
E. g., H.R.Rep. No. 914, 88th Cong., 1st Sess., 65-66, 71 (1963) (minority report); 110 Cong.Rec. 486-488 (1964) (remarks of Sen. Hill); id., at 2726 (remarks of Rep. Dowdy); id., at 7091 (remarks of Sen. Stennis).
34
In addition to the material cited in Franks v. Bowman Transportation Co., 424 U.S., at 759-762, 96 S.Ct., at 1261-1263, see 110 Cong.Rec. 1518 (1964) (remarks of Rep. Celler); id., at 6549 (remarks of Sen. Humphrey); id., at 6564 (remarks of Sen. Kuchel).
35
Senators Clark and Case were the "bipartisan captains" responsible for Title VII during the Senate debate. Bipartisan captains were selected for each title of the Civil Rights Act by the leading proponents of the Act in both parties. They were responsible for explaining their title in detail, defending it, and leading discussion on it. See id., at 6528 (remarks of Sen. Humphrey); Vaas, Title VII: Legislative History, 7 B.C.Ind. & Com.L.Rev. 431, 444-445 (1966).
36
The full text of the statement is set out in Franks v. Bowman Transportation Co., supra, at 760 n. 16, 96 S.Ct., at 1262. Senator Clark also introduced a set of answers to questions propounded by Senator Dirksen, which included the following exchange:
"Question. Would the same situation prevail in respect to promotions, when that management function is governed by a labor contract calling for promotions on the basis of seniority? What of dismissals? Normally, labor contracts call for 'last hired, first fired.' If the last hired are Negroes, is the employer discriminating if his contract requires they be first fired and the remaining employees are white?
"Answer. Seniority rights are in no way affected by the bill. If under a 'last hired, first fired' agreement a Negro happens to be the 'last hired,' he can still be 'first fired' as long as it is done because of his status as 'last hired' and not because of his race." 110 Cong.Rec. 7217 (1964). See Franks, supra, at 760 n. 16, 96 S.Ct., at 1262.
37
See Franks v. Bowman Transportation Co., supra, at 761, 96 S.Ct., at 1262; Vaas, supra, n. 35, at 435.
38
For the same reason, we reject the contention that the proviso in § 703(h), which bars differences in treatment resulting from "an intention to discriminate," applies to any application of a seniority system that may perpetuate past discrimination. In this regard the language of the Justice Department memorandum introduced at the legislative hearings, see supra, at 351, is especially pertinent: "It is perfectly clear that when a worker is laid off or denied a chance for promotion because under established seniority rules he is 'low man on the totem pole' he is not being discriminated against because of his race. . . . Any differences in treatment based on established seniority rights would not be based on race and would not be forbidden by the title." 110 Cong.Rec. 7207 (1964).
39
The legislative history of the 1972 amendments to Title VII, summarized and discussed in Franks, 424 U.S., at 764-765, n. 21, 96 S.Ct., at 1264; id., at 796-797, n. 18, 96 S.Ct., at 1263 (Powell, J., concurring in part and dissenting in part), in no way points to a different result. As the discussion in Franks indicates, that history is itself susceptible of different readings. The few broad references to perpetuation of pre-Act discrimination or "de facto segregated job ladders," see e. g., S.Rep. No. 92-415, pp. 5, 9 (1971); H.R.Rep. No. 92-238, pp. 8, 17 (1971), U.S.Code Cong. & Admin.News 1972, p. 2137, did not address the specific issue presented by this case. And the assumption of the authors of the Conference Report that "the present case law as developed by the courts would continue to govern the applicability and construction of Title VII," see Franks, supra, at 765 n. 21, 96 S.Ct., at 1264, of course does not foreclose our consideration of that issue. More importantly, the section of Title VII that we construe here, § 703(h), was enacted in 1964, not 1972. The views of members of a later Congress, concerning different sections of Title VII, enacted after this litigation was commenced, are entitled to little if any weight. It is the intent of the Congress that enacted § 703(h) in 1964, unmistakable in this case, that controls.
40
That Title VII did not proscribe the denial of fictional seniority to pre-Act discriminatees who got no job was recognized even in Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (ED Va.), and its progeny. Quarles stressed the fact that the references in the legislative history were to employment seniority rather than departmental seniority. Id., at 516. In Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 (CA5), another leading case in this area, the court observed:
"No doubt, Congress, to prevent 'reverse discrimination' meant to protect certain seniority rights that could not have existed but for previous racial discrimination. For example a Negro who had been rejected by an employer on racial grounds before passage of the Act could not, after being hired, claim to outrank whites who had been hired before him but after his original rejection, even though the Negro might have had senior status but for the past discrimination." Id., at 994.
41
In addition, there is no reason to suppose that Congress intended in 1964 to extend less protection to legitimate departmental seniority systems than to plantwide seniority systems. Then, as now, seniority was measured in a number of ways, including length of time with the employer, in a particular plant, in a department, in a job, or in a line of progression. See Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv.L.Rev. 1532, 1534 (1962); Cooper & Sobol, Seniority and Testing under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1602 (1969). The legislative history contains no suggestion that any one system was preferred.
42
See Georgia Highway Express, 150 N.L.R.B. 1649, 1651: "The Board has long held that local drivers and over-the-road drivers constitute separate appropriate units where they are shown to be clearly defined, homogeneous, and functionally distinct groups with separate interests which can effectively be represented separately for bargaining purposes. . . . In view of the different duties and functions, separate supervision, and different bases of payment, it is clear that the over-the-road drivers have divergent interests from those of the employees in the (city operations) unit . . . and should not be included in that unit."
43
The union will properly remain in this litigation as a defendant so that full relief may be awarded the victims of the employer's post-Act discrimination. Fed.Rule Civ.Proc. 19(a). See EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1095 (CA6).
44
The McDonnell Douglas case involved an individual complainant seeking to prove one instance of unlawful discrimination. An employer's isolated decision to reject an applicant who belongs to a racial minority does not show that the rejection was racially based. Although the McDonnell Douglas formula does not require direct proof of discrimination, it does demand that the alleged discriminatee demonstrate at least that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought. Elimination of these reasons for the refusal to hire is sufficient, absent other explanation, to create an inference that the decision was a discriminatory one.
45
The holding in Franks that proof of a discriminatory pattern and practice creates a rebuttable presumption in favor of individual relief is consistent with the manner in which presumptions are created generally. Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party's superior access to the proof. See C. McCormick, Law of Evidence §§ 337, 343 (2d ed. 1972); James, Burdens of Proof, 47 Va.L.Rev. 51, 61 (1961). See also Keyes v. School Dist. No. 1, 413 U.S. 189, 208-209, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548. These factors were present in Franks. Although the prima facie case did not conclusively demonstrate that all of the employer's decisions were part of the proved discriminatory pattern and practice, it did create a greater likelihood that any single decision was a component of the overall pattern. Moreover, the finding of a pattern or practice changed the position of the employer to that of a proved wrongdoer. Finally, the employer was in the best position to show why any individual employee was denied an employment opportunity. Insofar as the reasons related to available vacancies or the employer's evaluation of the applicant's qualifications, the company's records were the most relevant items of proof. If the refusal to hire was based on other factors, the employer and its agents knew best what those factors were and the extent to which they influenced the decision-making process.
46
The employer's defense must, of course, be designed to meet the prima facie case of the Government. We do not mean to suggest that there are any particular limits on the type of evidence an employer may use. The point is that at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking. While a pattern might be demonstrated by examining the discrete decisions of which it is composed, the Government's suits have more commonly involved proof of the expected result of a regularly followed discriminatory policy. In such cases the employer's burden is to provide a nondiscriminatory explanation for the apparently discriminatory result. See n. 20, supra, and cases cited therein.
47
The federal courts have freely exercised their broad equitable discretion to devise prospective relief designed to assure that employers found to be in violation of § 707(a) eliminate their discriminatory practices and the effects therefrom. See, e. g., cases cited in n. 51, infra. In this case prospective relief was incorporated in the parties' consent decree. See n. 4, supra.
48
Nonapplicants are discussed in Part III-B, infra.
49
Employees who initially applied for line-driver jobs and were hired in other jobs before the effective date of the Act, and who did not later apply for transfer to line-driver jobs, are part of the group of nonapplicants discussed infra.
50
Any nondiscriminatory justification offered by the company will be subject to further evidence by the Government that the purported reason for an applicant's rejection was in fact a pretext for unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S., at 804-806, 93 S.Ct., at 1825-1826.
51
The far-ranging effects of subtle discriminatory practices have not escaped the scrutiny of the federal courts, which have provided relief from practices designed to discourage job applications from minority-group members. See, e. g., Franks v. Bowman Transportation Co., 495 F.2d 398, 418-419 (CA5) (public recruitment and advertising), rev'd on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444; Carter v. Gallagher, 452 F.2d 315, 319 (CA8) (recruitment); United States v. Jacksonville Terminal Co., 451 F.2d, at 458 (posting of job vacancies and job qualification requirements); United States v. Local No. 86, Ironworkers, 315 F.Supp. 1202, 1238, 1245-1246 (WD Wash.) (dissemination of information), aff'd, 443 F.2d 544 (CA9). While these measures may be effective in preventing the deterrence of future applicants, they afford no relief to those persons who in the past desired jobs but were intimidated and discouraged by employment discrimination.
52
The limitation to incumbent employees is also said to serve the same function that actual job applications served in Franks: providing a means of distinguishing members of the excluded minority group from minority members of the public at large. While it is true that incumbency in this case and actual applications in Franks both serve to narrow what might otherwise be an impossible task, the statuses of nonincumbent applicant and nonapplicant incumbent differ substantially. The refused applicants in Franks had been denied an opportunity they clearly sought, and the only issue to be resolved was whether the denial was pursuant to a proved discriminatory practice. Resolution of the nonapplicant's claim, however, requires two distinct determinations: that he would have applied but for discrimination and that he would have been discriminatorily rejected had he applied. The mere fact of incumbency does not resolve the first issue, although it may tend to support a nonapplicant's claim to the extent that it shows he was willing and competent to work as a driver, that he was familiar with the tasks of line drivers, etc. An incumbent's claim that he would have applied for a line-driver job would certainly be more superficially plausible than a similar claim by a member of the general public who may never have worked in the trucking industry or heard of the company prior to suit.
53
Inasmuch as the purpose of the nonapplicant's burden of proof will be to establish that his status is similar to that of the applicant, he must bear the burden of coming forward with the basic information about his qualifications that he would have presented in an application. As in Franks, and in accord with Part III-A, supra, the burden then will be on the employer to show that the nonapplicant was nevertheless not a victim of discrimination. For example, the employer might show that there were other, more qualified persons who would have been chosen for a particular vacancy, or that the nonapplicant's stated qualifications were insufficient. See Franks, 424 U.S., at 773 n. 32, 96 S.Ct., at 1268.
54
Of the employees for whom the Government sought transfer to line-driving jobs, nearly one-third held city-driver positions.
55
The company's line drivers generally earned more annually than its city drivers, but the difference varied from under $1,000 to more than $5,000 depending on the terminal and the year. In 1971 city drivers at two California terminals, "LOS" and San Francisco, earned substantially more than the line drivers at those terminals. In addition to earnings, line drivers have the advantage of not being required to load and unload their trucks. City drivers, however, have regular working hours, are not required to spend extended periods away from home and family, and do not face the hazards of long-distance driving at high speeds. As the Government acknowledged at argument, the jobs are in some sense "parallel" some may prefer one job and some may prefer another.
The District Court found generally that line-driver jobs "are considered the most desirable of the driving jobs." That finding that is not challenged here, and we see no reason to disturb it. We observe only that the differences between city and line driving were not such that it can be said with confidence that all minority employees free from the threat of discriminatory treatment would have chosen to give up city for line driving.
56
In addition to the futility of application, the Court of Appeals seems to have relied on the minority employees' accumulated seniority in non-line-driver positions in concluding that nonapplicants had been unlawfully deterred from applying. See 517 F.2d, at 318, 320. The Government adopts that theory here, arguing that a nonapplicant who has accrued time at the company would be unlikely to have applied for transfer because he would have had to forfeit all of his competitive seniority and the job security that went with it. In view of our conclusion in Part II-B, supra, this argument detracts from rather than supports a nonapplicant's entitlement to relief. To the extent that an incumbent was deterred from applying by his desire to retain his competitive seniority, he simply did not want a line-driver job requiring him to start at the bottom of the "board." Those nonapplicants who did not apply for transfer because they were unwilling to give up their previously acquired seniority suffered only from a lawful deterrent imposed on all employees regardless of race or ethnicity. The nonapplicant's remedy in such cases is limited solely to the relief, if any, to which he may be entitled because of the discrimination he encountered at a time when he wanted to take a starting line-driver job.
57
The District Court's final order required that the company notify each minority employee of the relief he was entitled to claim. The employee was then required to indicate, within 60 days, his willingness to accept the relief. Under the decision of the Court of Appeals, the relief would be qualification-date seniority.
58
While the most convincing proof would be some overt act such as a pre-Act application for a line-driver job, the District Court may find evidence of an employee's informal inquiry, expression of interest, or even unexpressed desire credible and convincing. The question is a factual one for determination by the trial judge.
59
Paragraph 9(a) of the trial court's final order provided:
"A 'vacancy' as used in this Order, shall include any opening which is caused by the transfer or promotion to a position outside the bargaining unit, death, resignation or final discharge of an incumbent, or by an increase in operations or business where, ordinarily, additional employees would be put to work. A vacancy shall not exist where there are laid off employees on the seniority roster where the opening occurs. Such laid
off employees shall have a preference to fill such laid off positions when these again become open without competition from the individuals granted relief in this case. "However, if such layoff continues for three consecutive years the position will be deemed as 'vacant' with the right of all concerned to compete for the position, using their respective seniority dates, including those provided for in this Order."
The trial court's use of a three-year recall right is apparently derived from provisions in the collective-bargaining agreements. Article 5 of the National Master Freight Agreement (NMFA) establishes the seniority rights of employees covered by the Agreement. Under Art. 5, "(s)eniority rights for employees shall prevail . . . . Seniority shall only be broken by discharge, voluntary quit, (or) more than a three (3) year layoff." § 1. As is evident, the three-year layoff provision in the NMFA determines only when an employee shall lose all of his accumulated seniority; it does not determine either the order of layoff or the order of recall. Subject to other terms of the NMFA, Art. 2, § 2, "(t)he extent to which seniority shall be applied as well as the methods and procedures of such application" are left to the Supplemental Agreements. Art. 5, § 1. The Southern Conference Area Over-the-Road Supplemental Agreement, covering line drivers in the Southern Conference, also provides for a complete loss of seniority rights after a three-year layoff, Art. 42, § 1, and further provides that in the event of a reduction in force "the last employee hired shall be laid off first and when the force is again increased, the employees are to be returned to work in the reverse order in which they were laid off," Art. 42, § 3.
This order of layoff and recall, however, is limited by the NMFA in at least two situations involving an influx of employees from outside a terminal. NMFA Art. 5, § 3(a)(1) (merger with a solvent company, § 5(b)(2) (branch closing with transfer of operations to another branch). In these cases the Master Agreement provides for "dovetailing" the seniority rights of active and laid-off employees at the two facilities involved. Ibid.; see also NMFA, Art. 15 (honoring Military Selective Service Act of 1967). The NMFA also recognizes that "questions of accrual, interpretation or application of seniority rights may arise which are not covered by the general rules set forth," and provides a procedure for resolution of unforeseen seniority problems. Art. 5, § 7. Presumably § 7 applies to persons claiming discriminatory denial of jobs and seniority in violation of Art. 38,
which prohibits discrimination in hiring as well as classification of employees so as to deprive them of employment opportunities on account of race or national origin. See n. 29, supra. The District Court apparently did not consider these provisions when it determined the recall rights of employees on layoff.
60
In their briefs the petitioners also challenge the trial court's modification of the interterminal transfer rights of line drivers in the Southern Conference. See n. 10, supra. This question was not presented in either petition for certiorari and therefore is not properly before us. This Court's Rule 23(1)(c). Our disposition of the claim that is presented, however, will permit the trial court to reconsider any part of the balance it struck in dealing with this issue.
61
The petitioners argue that to permit a victim of discrimination to use his rightful-place seniority to bid on a line-driver job before the recall of all employees on layoff would amount to a racial or ethnic preference in violation of § 703(j) of the Act. Section 703(j) provides no support for this argument. It provides only that Title VII does not require an employer to grant preferential treatment to any group in order to rectify an imbalance between the composition of the employer's work force and the makeup of the population at large. See n. 20, supra. To allow identifiable victims of unlawful discrimination to participate in a layoff recall is not the kind of "preference" prohibited by § 703(j). If a discriminatee is ultimately allowed to secure a position before a laid-off line driver, a question we do not now decide, he will do so because of the bidding power inherent in his rightful-place seniority, and not because of a preference based on race. See Franks, 424 U.S., at 792, 96 S.Ct., at 1277 (Powell, J., concurring in part and dissenting in part).
62
Other factors, such as the number of victims, the number of nonvictim employees affected and the alternatives available to them, and the economic circumstances of the industry may also be relevant in the exercise of the District Court's discretion. See Franks, supra, at 796 n. 17, 96 S.Ct., at 1362 (Powell, J., concurring in part and dissenting in part).
1
In stating that the task nonapplicants face in proving that they should be treated like applicants is "difficult," ante, at 364, I understand the Court simply to be addressing the facts of this case. There may well be cases in which the jobs that the nonapplicants seek are so clearly more desirable than their present jobs that proving that but for the employer's discrimination the nonapplicants previously would have applied will be anything but difficult.
Even in the present case, however, I believe the Court unnecessarily adds to the nonapplicants' burden. While I agree that proof of a nonapplicant's current willingness to accept a line-driver job is not dispositive of the question of whether the company's discrimination deterred the nonapplicant from applying in the past, I do not agree that current willingness "says little," see ante, at 371, about past willingness. In my view, we would do well to leave questions of this sort concerning the weight to be given particular pieces of evidence in the district courts rather than attempting to resolve them through overly broad and ultimately meaningless generalizations.
2
Acha v. Beame, 531 F.2d 648 (CA2 1976); United States v. Bethlehem Steel Corp., 446 F.2d 652 (CA2 1971); Nance v. Union Carbide Corp., 540 F.2d 718 (CA4 1976), cert. pending, Nos. 76-824, 76-838; Patterson
v. American Tobacco Co., 528 F.2d 357 (CA4 1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1666, 48 L.Ed.2d 176 (1976); Hairston v. McLean Trucking Co., 520 F.2d 226 (CA4 1975); United States v. Chesapeake & Ohio R. Co., 471 F.2d 582 (CA4 1972), cert. denied sub nom. Railroad Trainmen v. United States, 411 U.S. 939, 93 S.Ct. 1893, 36 L.Ed.2d 401 (1973); Robinson v. Lorillard Corp., 444 F.2d 791 (CA4), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971); Griggs v. Duke Power Co., 420 F.2d 1225 (CA4 1970), rev'd on other grounds, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Swint v. Pullman-Standard, 539 F.2d 77 (CA5 1976); Sagers v. Yellow Freight System, 529 F.2d 721 (CA5 1976); Sabala v. Western Gillette, Inc., 516 F.2d 1251 (CA5 1975), cert. pending, Nos. 75-788, 76-1060; Gamble v. Birmingham Southern R. Co., 514 F.2d 678 (CA5 1975); Resendis v. Lee Way Motor Freight, Inc., 505 F.2d 69 (CA5 1974); Herrera v. Yellow Freight System, Inc., 505 F.2d 66 (CA5 1974); Carey v. Greyhound Bus Co., 500 F.2d 1372 (CA5 1974); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (CA5 1974); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (CA5 1974); Bing v. Roadway Express, Inc., 485 F.2d 441 (CA5 1973); United States v. Georgia Power Co., 474 F.2d 906 (CA5 1973); United States v. Jacksonville Terminal Co., 451 F.2d 418 (CA5 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972); Long v. Georgia Kraft Co., 450 F.2d 557 (CA5 1971); Taylor v. Armco Steel Corp., 429 F.2d 498 (CA5 1970); Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 (CA5 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970); EEOC v. Detroit Edison Co., 515 F.2d 301 (CA6 1975), cert. pending, Nos. 75-220, 75-221, 75-239, 75-393; Palmer v. General Mills, Inc., 513 F.2d 1040 (CA6 1975); Head v. Timken Roller Bearing Co., 486 F.2d 870 (CA6 1973); Bailey v. American Tobacco Co., 462 F.2d 160 (CA6 1972); Rogers v. International Paper Co., 510 F.2d 1340 (CA8), summarily vacated and remanded, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975); United States v. N. L. Industries, Inc., 479 F.2d 354 (CA8 1973); Gibson v. Longshoremen, 543 F.2d 1259 (CA9 1976); United States v. Navajo Freight Lines, Inc., 525 F.2d 1318 (CA9 1975).
The leading case in this line is a District Court decision, Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (ED Va. 1968).
3
Bowe v. Colgate, Palmolive Co., 489 F.2d 896 (CA7 1973); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (CA10 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971).
I agree with the Court, ante, at 346 n. 28, that the results in a large number of the Quarles line of cases can survive today's decision. That the instant seniority system "is rational, in accord with the industry practice, . . . consistent with NLRB precedents(,) . . . did not have its genesis in racial discrimination, and . . . was negotiated and has been maintained free from any illegal purpose," ante, at 356, distinguishes the facts of this case from those in many of the prior decisions.
4
CCH Empl. Prac. Guide (1976) PP 6481, 6448, 6441, 6400, 6399, 6395, 6382; CCH EEOC Decisions (1973) PP 6373, 6370, 6366, 6365, 6355, 6334, 6313, 6272, 6223, 6217, 6214, 6211, 6197, 6195, 6188, 6176, 6169, 6044.
5
Blumrosen, Seniority & Equal Employment Opportunity: A Glimmer of Hope, 23 Rutgers L.Rev. 268 (1969); Cooper & Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598 (1969); Fine: Plant Seniority and Minority Employees: Title VII's Effect on Layoffs, 47 U.Colo.L.Rev. 73 (1975); Gould, Seniority and the Black Worker: Reflections on Quarles and its Implications, 47 Texas L.Rev. 1039 (1969); Poplin, Fair Employment in a Depressed Economy: The Layoff Problem, 23 UCLA L.Rev. 177 (1975); S. Ross, Reconciling Plant Seniority with Affirmative Action and Anti-Discrimination in New York University, Twenty-Eighth Annual Conference on Labor 231 (1976); Developments in the Law Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1157-1164 (1971); Comment, Last Hired, First Fired Seniority, Layoffs, and Title VII: Questions of Liability and Remedy, 11 Colum.J.Law & Soc.Prob. 343 (1975); Note, The Problem of Last Hired, First Fired: Retroactive Seniority as a Remedy Under Title VII, 9 Ga.L.Rev. 611 (1975); Note, Last Hired, First Fired Layoffs and Title VII, 88 Harv.L.Rev. 1544 (1975); Note, Title VII, Seniority Discrimination, and the Incumbent Negro, 80 Harv.L.Rev. 1260 (1967); Comment, Title VII and Seniority Systems: Back to the Foot of the Line? 64 Ky.L.Rev. 114 (1975); Comment, Layoffs and Title VII: The Conflict Between Seniority and Equal Employment Opportunities, 1975 Wis.L.Rev. 791; 1969 Duke L.J. 1091; 46 N.C.L.Rev. 891 (1968).
6
The three documents, quoted in full in Franks v. Bowman Transportation Co., 424 U.S. 747, 759-761, nn. 15-16, 96 S.Ct. 1251, 1262, 47 L.Ed.2d 444 (1976), and in substantial part in today's decision, ante, at 350-351, and n. 36, are (1) the Clark-Case Interpretive Memorandum, 110 Cong.Rec. 7212-7215 (1964); (2) the Justice Department Reply to Arguments Made by Senator Hill, id., at 7207; and (3) Senator Clark's Response to the Dirksen Memorandum, id., at 7216-7218. They were all placed in the Congressional Record of April 8, 1964, but were not read aloud during the debates. The Mansfield-Dirksen amendment was presented by Senator Dirksen on May 26, 1964. Id., at 11926.
A few general statements also were made during the course of the debates concerning Title VII's impact on seniority, but these statements add nothing to the analysis contained in the documents. See id., at 1518 (Rep. Cellar); id., at 6549, 11848 (Sen. Humphrey); id., at 6563-6564 (Sen. Kuchel); id., at 9113 (Sen. Keating); id., at 15893 (Rep. McCulloch).
7
In amending Title VII in 1972, Congress acknowledged its own prior naivetEe:
"In 1964, employment discrimination tended to be viewed as a series of isolated and distinguishable events, for the most part due to ill-will on the part of some identifiable individual or organization. . . . Experience has shown this view to be false." S.Rep. No. 92-415, p. 5 (1971).
See H.R.Rep. No. 92-238, p. 8 (1971).
8
This understanding of § 703(h) underlies Franks' holding that constructive seniority is the presumptively correct remedy for discriminatory refusals to hire, even though awarding such seniority necessarily disrupts the expectations of other employees.
9
The most detailed attack on Title VII's effect on seniority rights was voiced in the minority report to the House Judiciary Committee Report, H.R.Rep.No. 914, 88th Cong., 1st Sess. (1963):
"The provisions of this act grant the power to destroy union seniority. . . . (T)he extent of actions which would be taken to destroy the seniority system is unknown and unknowable.
" . . . Under the power granted in this bill, if a carpenters' hiring hall, say, had 20 men awaiting call, the first 10 in seniority being white carpenters, the union could be forced to pass them over in favor of carpenters beneath them in seniority, but of the stipulated race." Id., at 71 (emphasis in original).
The Senate opponents of the bill who discussed its effects on workers generally followed this line, although the principal argument advanced in the Senate was that Title VII would require preferential hiring of minorities. See 110 Cong.Rec. 487 (1964) (Sen. Hill); id., at 7091 (Sen. Stennis); id., at 7878 (Sen. Russell).
10
The Clark-Case Memorandum states:
"Title VII would have no effect on established seniority rights. . . . Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when the title comes into effect the employer's obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged or indeed, permitted to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers." Id., at 7213.
The remaining documents, see n. 6, supra, while phrased more generally, are entirely consistent with the focus of Senators Clark and Case.
11
E. g., Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (CA5 1974); United States v. N. L. Industries, Inc., 479 F.2d 354 (CA8 1973); Griggs v. Duke Power Co., 420 F.2d 1225 (CA4 1970).
12
E. g., Carey v. Greyhound Bus Co., 500 F.2d 1372 (CA5 1974); United States v. Jacksonville Terminal Co., 451 F.2d 418 (CA5 1971).
13
United States v. Bethlehem Steel Corp., 446 F.2d, at 655.
14
This "lock-in" effect explains why, contrary to the Court's assertion, ante, at 354, there is a "rational basis for distinguishing . . . claims (of persons already employed in less desirable jobs) from those of persons initially denied any job." Although denying constructive seniority to the latter group will prevent them from assuming the position they would have occupied but for the pre-Act discrimination, it will not deter them from moving into higher paying jobs.
In comparing incumbent employees with pre-Act discriminatees who were refused jobs, however, the Court assumes that § 703(h) must mean that the latter group need not be given constructive seniority if they are later hired. The only clear effect of § 703(h), however, is to prevent persons who were not discriminated against from obtaining special seniority rights because they are members of minority groups. See supra, at 385-386, and n. 10. Although it is true, as the Court notes, ante, at 3540-355, n. 40, that in Quarles and United Papermakers the courts concluded that persons refused jobs prior to the Act need not be given fictional seniority, the EEOC, CCH EEOC Decisions (1973) P 6217, and several commentators, e. g., Cooper & Sobol, supra, n. 5; Note, supra, n. 5, 88 Harv.L.Rev., at 1544, have rejected this conclusion, and more recent decisions have questioned it, e. g., Watkins v. Steel Workers, 516 F.2d 41 (CA5 1975).
15
See, e. g., 110 Cong.Rec. 6547 (1964) (remarks of Sen. Humphrey); id., at 6562 (remarks of Sen. Kuchel); id., at 7203-7204 (remarks of Sen. Clark); H.R.Rep. No. 914, Pt. 2, 88th Cong., 1st Sess., 26-29 (1963).
16
See sources cited in n. 15, supra.
17
As one commentator has stated:
"(T)he statute conflicts with itself. While on the one hand Congress did wish to protect established seniority rights, on the other it intended to expedite black integration into the economic mainstream and to end, once and for all, the de facto discrimination which replaced slavery at the end of the Civil War." Poplin, supra, n. 5, at 191.
18
See also Gould, supra, n. 5, at 1042:
"If Congress intended to bring into being an integrated work force, . . . and not merely to create a paper plan meaningless to Negro workers, the only acceptable legislative intent on past discrimination is one that requires unions and employers to root out the past discrimination embodied in presently nondiscriminatory seniority arrangements so that black and white workers have equal job advancement rights."
19
See cases cited in n. 4, supra.
The National Labor Relations Board has reached a similar conclusion in interpreting the National Labor Relations Act, 29 U.S.C. § 151 et seq. In Local 269, Electrical Workers, 149 N.L.R.B. 769 (1964), enforced, 357 F.2d 51 (CA3 1966), the Board held that a union hiring hall commits present acts of discrimination when it makes referrals based on experience if, in the past, the union has denied nonunion members the opportunity to develop experience. See also Houston Maritime Assn., 168 N.L.R.B. 615 (1967), enforcement denied, 426 F.2d 584 (CA5 1970).
20
For example, the 1972 Act added to the definitional section of Title VII, 42 U.S.C. § 2000e (1970 ed., Supp. V), a new subsection (j) defining "religion" to include "religious observance and practice, as well as belief." This subsection was added "to provide the statutory basis for EEOC to formulate guidelines on discrimination because of religion such as those challenged in Dewey v. Reynolds Metal Company, 429 F.2d (324) (6th Cir. 1970), affirmed by an equally divided court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971)." 118 Cong.Rec. 7167 (1972) (Section-by-Section Analysis of H.R. 1746, the Equal Employment Opportunity Act of 1972, prepared by Sens. Williams and Javits). Dewey had questioned the authority of the EEOC to define "religion" to encompass religious practices. Dewey v. Reynolds Metals Co., 429 F.2d 324, 331 n. 1, 334-335 (CA6 1970).
21
After acknowledging the naive assumptions of the 1964 Civil Rights Act, see n. 7, supra, both Committee Reports went on to state:
"Employment discrimination as viewed today is a far more complex and pervasive phenomenon. Experts familiar with the subject now generally describe the problem in terms of 'systems' and 'effects' rather than simply intentional wrongs, and the literature on the subject is replete with discussions of, for example, the mechanics of seniority and lines of progression, (and) perpetuation of the present effect of pre-act discriminatory practices through various institutional devices . . . . In short, the problem is one whose resolution in many instances requires not only expert assistance, but also the technical perception that the problem exists in the first instance, and that the system complained of is unlawful." S.Rep. No. 92-415, p. 5 (1971).
See H.R.Rep. No. 92-238, p. 8 (1971).
In addition in discussing "pattern or practice" suits and the recommendation to transfer the power to bring them to the EEOC, the House Report singled out several seniority cases, including United Papermakers, as examples of suits that "have contributed significantly to the Federal effort to combat employment discrimination." No. 92-238, supra, at 13, and n. 4.
It is difficult to imagine how Congress could have better "address(ed) the specific issue presented by this case," ante, at 354 n. 39, than by referring to "the mechanics of seniority . . . (and) perpetuation of the present effect of pre-act discriminatory practices" and by citing Quarles and United Papermakers.
22
Both Reports stated that state and local governments had discriminated in the past and that "the existence of discrimination is perpetuated by both institutional and overt discriminatory practices . . . (such as) de facto segregated job ladders." S.Rep. No. 92-415, supra, at 10; H.R.Rep. No. 92-238, supra, at 17, U.S.Code Cong. & Admin.News 1972, p. 2152. The same points were made in the debate in the House and Senate. 118 Cong.Rec. 1815 (1972) (remarks of Sen. Williams); 117 Cong.Rec. 31961 (1971) (remarks of Rep. Perkins).
23
The Senate Report stated:
"It is expected that through the administrative process, the Commission will continue to define and develop the approaches to handling serious problems of discrimination that are involved in the area of employment . . . (including seniority systems)." S.Rep. No. 92-415, supra, at 19.
The House Report argued:
"Administrative tribunals are better equipped to handle the complicated issues involved in employment discrimination cases. . . . Issues that have perplexed courts include plant-wide restructuring of pay-scales and progression lines, seniority rosters and testing." H.R.Rep. No. 92-238, supra, at 10, U.S.Code Cong. & Admin.News 1972, p. 2146.
24
By enacting a new section defining the EEOC's powers with reference to §§ 703 and 704 of the 1964 Act, Congress in 1972 effectively re-enacted those sections, and the judicial gloss that had been placed upon them. See 2A C. Sands, Sutherland's Statutes and Statutory Construction § 49.10 (1973) and cases cited; cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (finding that re-enactment in 1972 of backpay provision of 1964 Act "ratified" Courts of Appeals decisions awarding backpay to unnamed class members who had not filed charges with the EEOC).
| 12
|
431 U.S. 471
97 S.Ct. 1898
52 L.Ed.2d 513
OHIO BUREAU OF EMPLOYMENT SERVICES et al., Appellants,v.Leonard Paul HODORY.
No. 75-1707.
Argued Feb. 28, 1977.
Decided May 31, 1977.
Syllabus
Appellee, an employee of United States Steel Corporation (USS) at a plant in Ohio, was furloughed when the plant was shut down because of a reduction in fuel supply resulting from a nationwide strike of workers at USS's coal mines. Appellee applied to appellant Ohio Bureau of Employment Services for unemployment benefits but his claim was disallowed under an Ohio statute that disqualified a worker from such benefits if his unemployment was "due to a labor dispute other than a lockout at any factory . . . owned or operated by the employer by which he is or was last employed." While appellee's request for reconsideration was pending before the Board of Review, he filed a class action in Federal District Court against appellants, the Bureau and its director, for declaratory and injunctive relief, asserting that the Ohio statute conflicted with certain provisions of the Social Security Act (SSA) and that, as applied, it was irrational and had no valid public purpose, in violation of the Due Process and Equal Protection Clauses of the fourteenth Amendment. Concluding that abstention was not proper, the District Court held that the statute, as applied to appellee and the class members, violated those Clauses. Held :
1. Abstention is not required under either Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, or Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. Pp. 477-481.
(a) Where Ohio has concluded to submit the constitutional issue to this Court for immediate resolution, Younger principles of equity and comity do not require this Court to refuse Ohio the immediate adjudication it seeks. Pp. 477-480.
(b) Nor is Pullman abstention appropriate, where the possible benefits of abstention have become too speculative to justify or require avoidance of the constitutional question. Pp. 480-481.
2. The Ohio statute is neither in conflict with, nor is it pre-empted by 42 U.S.C. § 503(a) (the provision of the SSA that precludes the Secretary of Labor from certifying payment of federal funds to state unemployment compensation programs unless state law provides for such methods of administration as the Secretary finds are "reasonably calculated to insure full payment of unemployment compensation when due"), or the Federal Unemployment Tax Act (FUTA). Pp. 489-493.
3. The Ohio statute, which has a rational relation to a legitimate state interest, is constitutional. Pp. 489-493.
(a) The statute does not involve any discernible fundamental interest or affect with particularity any protected class, and the test of constitutionality, therefore, is whether the statute has a rational relation to a legitimate state interest. P. 489.
(b) In considering the constitutionality of the statute, this Court must view its consequences, not only for the recipient of the benefits, but also for the contributors to the compensation fund, and, although the system may provide only "rough justice" and a rough form of state "neutrality" in labor disputes, the statute cannot be said to be irrational, and the need for limitation of the liability of the compensation fund is a legitimate state interest. Pp. 489-493.
408 F.Supp. 1016, reversed.
Richard A. Szilagyi, Columbus, Ohio, for appellants.
Thomas Patrick Lordeon, Youngstown, Ohio, for appellee.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents a challenge to Ohio Rev.Code Ann. § 4141.29(D)(1)(a) (1973). That statute, at the times relevant to this suit, imposed a disqualification for unemployment benefits when the claimant's unemployment was "due to a labor dispute other than a lockout at any factory . . . owned or operated by the employer by which he is or was last employed." The challenge is based on the Supremacy Clause and on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The case also raises questions concerning abstention.
2
* In November 1974 plaintiff-appellee, Leonard Paul Hodory, was employed as a millwright apprentice with United States Steel Corporation (USS) at its works in Youngstown, Ohio. The United Mine Workers at that time were out on strike at coal mines owned by USS and by Republic Steel Corporation throughout the country. These company-owned mines supplied the fuel used in the operation of manufacturing facilities of USS and Republic. As a result of the strike, the fuel supply at the Youngstown plant was reduced. The plant eventually was shut down and appellee was furloughed on November 12, 1974.
3
Hodory applied to appellant Ohio Bureau of Employment Services for unemployment benefits. On January 3, 1975, he was notified by the Bureau that his claim was disallowed under Ohio Rev.Code Ann. § 4141.29(D)(1)(a) (1973). That statute then provided that a worker may not receive unemployment benefits if
4
"(h)is unemployment was due to a labor dispute other than a lockout at any factory, establishment, or other premises located in this or any other state and owned or operated by the employer by which he is or was last employed; and for so long as his unemployment is due to such labor dispute."1
5
The written notification to appellee recited: "A labor dispute started at coal mines owned and operated by U. S. Steel Corporation and claimant is unemployed because of this labor dispute." App. i. Other notifications to Hodory for subsequent unemployment weeks contained similar recitals. Id., at ii and iii. Appellee promptly filed a request for reconsideration. In accord with the provisions of Ohio Rev.Code Ann. § 4141.28(G) (1973), his request, along with a number of others, was referred on March 7 to the Board of Review.2
6
Meanwhile, on January 27, Hodory filed a complaint in the United States District Court for the Northern District of Ohio against the Bureau and its director, Albert G. Giles. The complaint was based on 42 U.S.C. § 1983 and sought declaratory and injunctive relief on behalf of appellee and "all others similarly situated" who had been or in the future would be denied benefits under § 4141.29(D)(1)(a). Record, Doc. 3, pp. 1 and 3. Hodory asserted, among other things, that the Ohio statute was in conflict with §§ 303(a)(1) and (3) of the Social Security Act of 1935, as amended, 42 U.S.C. §§ 503(a)(1) and (3), and that the statute as applied was irrational and had no valid public purpose, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.3 The gravamen of Hodory's complaint was the assertion that the State may not deny benefits to those who like him, are unemployed under circumstances where the unemployment is "not the fault of the employee." A three-judge court was requested.
7
Appellants in their answer asserted, among other things, that Hodory had failed to exhaust his state administrative remedies.
8
A three-judge court was convened. The case was tried on the pleadings and interrogatories. In its opinion filed March 5, 1976, 408 F.Supp. 1016, that court concluded that abstention was not required and would not be proper; that the action was properly maintained as a class action;4 and that the appellants had failed to demonstrate a rational and legitimate interest in discriminating against "individuals who were unemployed through no fault of their own and neither participated in nor benefited from the labor dispute involving another union and their employer." Id., at 1022. The court then held that § 4141.29(D)(1)(a), as applied to Hodory and the class members, violated the Equal Protection and Due Process Clauses.
9
The Bureau and its director took a direct appeal here pursuant to 28 U.S.C. § 1253. In their jurisdictional statement appellants argued only that (1) the "labor dispute" disqualification provision is not unconstitutional as applied to appellee and the class; (2) the disqualification provision is not in conflict with the Social Security Act; (3) a state system of unemployment compensation may predicate disqualification upon any reasonable basis; and (4) USS and Republic, as employers of the class members, were denied substantive and procedural due process by the failure of the District Court to order them joined as parties defendant.5 Appellants made no claim therein based on abstention. We noted probable jurisdiction. 429 U.S. 814, 97 S.Ct. 53, 50 L.Ed.2d 73 (1976).
10
A claim that the District Court should have abstained from deciding the case has been raised, however, in the brief amicus curiae filed by the AFL-CIO. A like claim is at least suggesteds by Republic Steel. Brief as Amicus Curiae 16-17. We feel those claims merit consideration.
11
We follow the proper course for federal courts by considering first whether abstention is required, then whether there is a statutory ground of resolution, and finally, only if the challenge persists, whether the statute violates the Constitution.
II
Abstention
12
There are, of course, two primary types of federal abstention. The first, usually referred to as Pullman abstention, involves an inquiry focused on the possibility that the state courts may interpret a challenged state statute so as to eliminate or at least to alter materially, the constitutional question presented. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976). The second type is Younger abstention, in which the court is primarily concerned, in an equitable setting, with considerations of comity and federalism, both as they relate to the State's interest in pursuing an ongoing state proceeding, and as they involve the ability of the state courts to consider federal constitutional claims in that context. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). See Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Judice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Trainor v. Hernandez, 431 U.S. 434, at 448, 97 S.Ct. 1911, at 1920, 52 L.Ed.2d 486 (concurring opinion).
13
A. In the present case, appellants, who in effect are the State of Ohio, argued before the District Court that appellee was free to pursue his pending administrative appeal and have his constitutional claim adjudicated in the Court of Common Pleas, and that principles of comity therefore required abstention.6 Although appellants in their written submission to that court cited Pullman, the argument was clearly to the effect that Younger abstention should apply.7
14
The District Court held that abstention was unwarranted. It first asserted that in Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), this Court "stated specifically that administrative remedies need not be exhausted where the federal court plaintiff states a good cause of action under 42 U.S.C. § 1983." 408 F.Supp., at 1019.8 The court then stated that § 4141.29(D)(1)(a), "on its face, would appear to except the plaintiff from unemployment benefits for the period he was laid off due to coal miners' strike," and that "the Employment Bureau has denied benefits to plaintiff . . . solely on the basis of the challenged labor dispute disqualification." 408 F.Supp., at 1019. The court held that exhaustion of administrative remedies would be futile because the administrative appeal process would not permit a challenge to the constitutionality of the statute, and the Ohio courts had held the statute to be constitutional. Id., at 1019, and n. 1. Although the court observed that Huffman v. Pursue, Ltd., supra, broadened the Younger doctrine "to include a prohibition against federal court interference with certain ongoing civil proceedings in the state courts." 408 F.Supp., at 1019-1020, the court held that Huffman "was limited to the enjoining of ongoing state-initiated judicial proceedings," 408 F.Supp., at 1020 (emphasis in original), and did not apply to a challenge to administrative actions. Finally, the court held that abstention, along the Pullman line, "would not be proper in this case" because the challenged statute is not an ambiguous one "involving unsettled questions of state law which could be rendered constitutionally inoffensive by a limiting construction in the state courts." 408 F.Supp., at 1020. The court concluded that it would be improper to require the appellee "to undertake three administrative appeals"9 before he could challenge the statute in state court "where, moreover, the issue as to the constitutionality of the labor dispute disqualification has apparently been settled." Ibid.
15
In this Court, as has been noted, appellants have not argued that Younger requires a remand with directions to the District Court to abstain, and at oral argument they resisted the suggestion of such a remand. Tr. of Oral Arg. 9-10. Instead, it is amicus Republic Steel that has made the suggestion.
16
Younger v. Harris reflects "a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." 401 U.S., at 44, 91 S.Ct., at 750. See Huffman v. Pursue, Ltd., 420 U.S., at 604, 95 S.Ct., at 1208; Judice v. Vail, 430 U.S., at 334, 97 S.Ct., at 1216-1217; Trainor v. Hernandez, 431 U.S., at 441-443, 445-446, 97 S.Ct., at 1916-1917, 1919-1920, and id., at 448, 97 S.Ct., at 1920 (concurring opinion). Younger and these cited cases express equitable principles of comity and federalism. They are designed to allow the State an opportunity to "set its own house in order" when the federal issue is already before a state tribunal.
17
It may not be argued, however, that a federal court is compelled to abstain in every such situation. If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State's own system. In the present case, Ohio either believes that the District Court was correct in its analysis of abstention or, faced with the prospect of lengthy administrative appeals followed by equally protracted state judicial proceedings, now has concluded to submit the constitutional issue to this Court for immediate resolution. In either event, under these circumstances Younger principles of equity and comity do not require this Court to refuse Ohio the immediate adjudication it seeks.10
18
B. Amicus AFL-CIO argues that Pullman abstention is proper here.11 The basis for the claimed applicability of Pullman is found in the facts that there were other steelworkers, at other Ohio facilities, laid off at the same time as appellee and assertedly for the same reason, and yet they were awarded unemployment compensation by the Bureau. See Brief for Appellants 3. Benefits were granted on the ground that the company-owned coal mines did not supply a sufficient amount of fuel to the plants there involved to effect a plant shutdown.12 Amicus argues that if appellee were to pursue his administrative appeal, he might be granted benefits on the same ground.
19
The problems with this approach, however, are several. First, appellee did not press any such claim before the Bureau or on administrative appeal, Tr. of Oral Arg. 9, and there is no indication that a claimant may be awarded benefits on the basis of a claim not made to the Bureau or Board of Review. Second, there is no indication that the plant at which appellee worked is situated similarly to the plants as to which benefits were granted. The Bureau apparently applied a test under which the closing of a plant was held not to be "due to" the labor dispute if the plant received less than 50% of its coal from the employer's struck mines. Id., at 7-8. There has been no claim or showing that the 50% test is unreasonable or improper and there has been no claim that appellee's plant was not dependent on the struck mines for more than 50% of its coal. What amicus suggests is that the court abstain on the basis of speculation that the unchallenged facts may not be as the Bureau obviously saw them, or that the Board might overturn an unchallenged standard of causation, or that the Board might even come up with a hitherto unknown and unclaimed reason for awarding benefits to appellee, such as a theory that because the coal strike was nationwide it was not " 'at the employers' mines.' " See Brief for AFL-CIO as Amicus Curiae 8.
20
None of these suggestions is based on fact or solid legal precedent. As has been noted, Pullman abstention is an equitable doctrine that comes into play when it appears that abstention may eliminate or materially alter the constitutional issue presented. There is a point, however, at which the possible benefits of abstention become too speculative to justify or require avoidance of the question presented. That point has been reached and surpassed here. We conclude that Pullman abstention is not appropriate.
III
Pre-emption
21
Appellee argues that the Ohio statute is in conflict with, or pre-empted by, certain provisions of the Social Security Act, 42 U.S.C. § 501 et seq., and the Federal Unemployment Tax Act, 26 U.S.C. §§ 3301-3311. This argument was raised in the District Court but was not resolved there. It would have been preferable, of course, for that court to have dealt with this statutory issue first. See Hagans v. Lavine, 415 U.S. 528, 543-545, 94 S.Ct. 1372, 1382-1383, 39 L.Ed.2d 577 (1974). The issue, however, entails no findings of fact and has been fully briefed here by both parties. We therefore perceive no need to remand to the District Court, and we proceed to decide the question.
22
Appellee points to two statutes as the source of his claimed federal requirement that he be paid unemployment compensation. The first is 42 U.S.C. § 503(a)(1), to the effect that the Secretary of Labor shall make no certification for payment of federal funds to state unemployment compensation programs unless state law provides for such methods of administration "as are found by the Secretary of Labor to be reasonably calculated to insure full payment of unemployment compensation when due." Appellee's argument necessarily is that payment is "due" him.
23
Appellee cites only a single page of the voluminous legislative history of the Social Security Act in support of his assertion that the Act forbids disqualification of persons laid off due to a labor dispute at a related plant. That page contains the sentence: "To serve its purposes, unemployment compensation must be paid only to workers involuntarily unemployed." Report of the Committee on Economic Security, as reprinted in Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 1311, 1328 (1935).
24
The cited Report was one to the President of the United States and became the cornerstone of the Social Security Act. On its face, the quoted sentence may be said to give some support to appellee's claim that "involuntariness" was intended to be the key to eligibility. A reading of the entire Report and consideration of the sentence in context, however, show that Congress did not intend to require that the States give coverage to every person involuntarily unemployed.
25
The Report recognized that federal definition of the scope of coverage would probably prove easier to administer than individualized state plans, id., at 1323, but it nonetheless recommended the form of unemployment compensation scheme that exists today, namely, federal involvement primarily through tax incentives to encourage state-run programs. The Report's section entitled "Outline of Federal Act" concludes with the statement:
26
"The plan for unemployment compensation that we suggest contemplates that the States shall have broad freedom to set up the type of unemployment compensation they wish. We believe that all matters in which uniformity is not absolutely essential should be left to the States. The Federal Government, however, should assist the States in setting up their administrations and in the solution of the problems they will encounter." Id., at 1326.
27
See also id., at 1314.
28
Following this statement, the Report contains a section entitled "suggestions for State Legislation." It reads:
29
"Benefits. The States should have freedom in determining their own waiting periods, benefit rates, maximum-benefit periods, etc. We suggest caution lest they insert benefit provisions in excess of collections in their laws. To arouse hopes of benefits which cannot be fulfilled is invariably bad social and governmental policy." Id., at 1327.
30
This statement reflects two things. First, it reflects the understanding that unemployment compensation schemes generally do not grant full benefits immediately and indefinitely, even to those involuntarily unemployed. The States were expected to create waiting periods, benefit rates, and maximum-benefit periods, so as to bring the amount paid out in line with receipts. Second, the statement reflects concern that the States might grant eligibility greater than their funds could handle.
31
By way of advice on particular statutes, the Report's "Suggestions" contains the following:
32
"Willingness-to-work test. To serve its purposes, unemployment compensation must be paid only to workers involuntarily unemployed. The employees compensated must be both able and willing to work and must be denied benefits if they refuse to accept other suitable employment. Workers, however, should not be required to accept positions with wage, hour, or working conditions below the usual standard for the occupation or the particular region, or outside of the State, or where their rights of self-organization and collective bargaining would be interfered with." Id., at 1328.
33
This, as has been noted, is the origin of appellee's argument that all persons involuntarily unemployed were intended to be compensated. Placed in context, however, it is clear that the single sentence is only an expression of caution that funds should not be dispensed too freely, and is not a direction that funds must be dispensed.
34
Appellee's claim of support in the legislative history accordingly fails. Indeed, that history shows, rather, that Congress did not intend to restrict the ability of the States to legislate with respect to persons in appellee's position. See also H.R.Rep.No.615, 74th Cong., 1st Sess., 8-9 (1935); S.Rep.No.628, 74th Cong., 1st Sess., 12-13 (1935).
35
Appellee would find support in the "labor dispute disqualification" contained in § 5(d) of draft bills issued by the Social Security Board shortly after passage of the Social Security Act. Social Security Board, Draft Bills for State Unemployment Compensation of Pooled Fund and Employer Reserve Account Types (1936).13 Appellee argues that this proposed section evinced an intention that "innocent" persons not be disqualified from unemployment compensation. The Social Security Board, however, on the cover page of the draft bills booklet explicitly stated:
36
"These drafts are merely suggestive . . . . Therefore, they cannot properly be termed 'model' bills or even recommended bills. This is in keeping with the policy of the Social Security Board of recognizing that it is the final responsibility and the right of each state to determine for itself just what type of legislation it desires and how it shall be drafted."
37
We therefore are most reluctant to read implications of the draft bills into the Social Security Act.
38
More important, however, appellee's argument fails on its face. The draft bills themselves denied "innocents" certain compensation. They did so not only in the various provisions as to minimum time spent at the job, waiting periods, and maximum benefits, but also in the labor dispute disqualification itself. The labor dispute provisions are triggered by a dispute at the same "establishment" and they disqualify any member of a "grade or class of workers" any of whose members were interested in the dispute. As the commentary and case law in jurisdictions that adopted versions of the draft bills immediately recognized, this division could serve to disqualify even a person who actively opposed a strike and could extend to persons laid off because of a dispute at another plant owned by the same employer.14
39
The law that appellee challenges is different in form from the draft bills, but we cannot say that it is qualitatively different. We do not find in the draft bills any significant support for appellee's argument that the Social Security Act forbids his disqualification from benefits.
40
Appellee also claims support from this Court's decision in California Human Resources Dept. v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971). In that case the Court held that the requirement of 42 U.S.C. § 503(a)(1) that payments be made "when due" forbids suspension of payments during an appeal subsequent to a full consideration on the merits. Appellee relies on the Court's statement: "The objective of Congress was to provide a substitute for wages lost during a period of unemployment not the fault of the employee." 402 U.S., at 130, 91 S.Ct., at 1353. Appellee argues that this statement is a holding that the Act forbids disqualification of persons in his position. We do not agree. Nothing in Java purported to define the class of persons eligible for benefits. The Court's sole concern there was with the treatment of those who already had been determined under state law to be eligible.
41
Finally, appellee argues that statements in the legislative history of the Employment Security Amendments of 1970, 84 Stat. 695, indicate a congressional understanding that persons in his position must not be disqualified. These statements (identical in both House and Senate Reports) relate to the amendment prohibiting States from canceling accumulated wage credits on grounds such as an employee's change of jobs.15 The statements are concerned with a situation unrelated to the one in which appellee finds himself. To the extent that they might be seen as shedding light on the area, they are far from persuasive authority in appellee's favor, since they recognize that the States continue to be free to disqualify a claimant whose unemployment is due to a labor dispute "in the worker's plant, etc." As an alternative or addition to his argument based on the Social Security Act, appellee urges that the Federal Unemployment Tax Act, 26 U.S.C. §§ 3301-3311, as amended, shows "congressional intent to pre-empt the state, particularly with respect to the scope of inclusiveness in the unemployment program." Brief for Appellee 13. We do not understand appellee to argue that the States are pre-empted by the Federal Unemployment Tax Act from imposing any sort of labor dispute disqualification. If total pre-emption is not claimed, we find nothing in any of appellee's citations that would show pre-emption in the particular area of concern to him. Indeed, study of the various provisions cited shows that when Congress wished to impose or forbid a condition for compensation, it was able to do so in explicit terms.16 There are numerous examples, in addition to the one set forth in n. 16, less related to labor disputes but showing congressional ability to deal with specific aspects of state plans.17 The fact that Congress has chosen not to legislate on the subject of labor dispute disqualifications confirms our belief that neither the Social Security Act nor the Federal Unemployment Tax Act was intended to restrict the States' freedom to legislate in this area.
IV
Constitutionality
42
We come, then, to the question whether the Ohio labor dispute disqualification provision is constitutional. The statute does not involve any discernible fundamental interest or affect with particularity any protected class. Appellee concedes that the test of constitutionality, therefore, is whether the statute has a rational relation to a legitimate state interest. Brief for Appellee 29. See New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). Our statement last Term in Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed. 520 (1976), explains the analysis:
43
"We turn then to examine this state classification under the rational-basis standard. This inquiry employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Dandridge v. Williams, (397 U.S. 471,) 485, 90 S.Ct. (1153), at 1162 (25 L.Ed.2d 491 (1970)). Such action by a legislature is presumed to be valid." Id., at 314, 96 S.Ct., at 2567.
44
Appellee challenges the statute only in its application to persons in his situation. We find it difficult, however, to discern the precise nature of the situation that appellee claims may not be the subject of disqualification. His discussion focuses to a great extent on his claim that he is "involuntarily unemployed," but he cannot be arguing that no person involuntarily unemployed may be disqualified, for he approves the draft bills' labor dispute provision. Brief for Appellee 53. That provision, as discussed above, would disqualify an involuntarily unemployed nonunion worker who opposed a strike but whose grade or class of workers nevertheless went out on strike.
45
Appellee's claim of irrationality appears to be based, rather, on his view of the statute's broad sweep, in that it disqualifies an individual "regardless of the geographical remoteness of the location of the dispute, and regardless of any arguable actual, or imputable, participation or direct interest in the dispute on the part of the disqualified person."18 Id., at 34. Appellee thus focuses on the interests of the recipient of unemployment compensation.
46
The unemployment compensation statute, however, touches upon more than just the recipient. It provides for the creation of a fund produced by contributions from private employers. The rate of an employer's contribution to the fund varies according to benefits paid to that employer's eligible employees. Ohio Rev.Code Ann. § 4141.25 (1973). Any action with regard to disbursements from the unemployment compensation fund thus will affect both the employer and the fiscal integrity of the fund. Appellee in effect urges that the Court consider only the needs of the employee seeking compensation. The decision of the weight to be given the various effects of the statute, however, is a legislative decision, and appellee's position is contrary to the principle that "the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy." Dandridge v. Williams, 397 U.S. 471, 486, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970). In considering the constitutionality of the statute, therefore, the Court must view its consequences, not only for the recipient of benefits, but also for the contributors to the fund and for the fiscal integrity of the fund.
47
Looking only at the face of the statute, an acceptable rationale immediately appears. The disqualification is triggered by "a labor dispute other than a lockout." In other words, if a union goes on strike, the employer's contributions are not increased, but if the employer locks employees out, all his employees thus put out of work are compensated and the employer's contributions accordingly are increased. Although one might say that this system provides only "rough justice," its treatment of the employer is far from irrational. "If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369." Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at 1161. The rationality of this treatment is, of course, independent of any "innocence" of the workers collecting compensation.
48
Appellants assert three additional rationales for the disqualification provision. First, they argue that granting benefits to workers laid off due to a strike at a parent company's subsidiary plant in effect would be subsidizing the union members. Brief for Appellants 12. The District Court correctly rejected this rationale, as applied to appellee and his class, because payments to appellee would in no way directly subsidize the striking coal miners, and the fact that appellee happened to be a member of a union (other than the striking union) is not a legitimate reason, standing alone, to deny him benefits. 408 F.Supp., at 1022. The court continued:
49
"Moreover, close scrutiny of the reasons for the State's classification reveals that what the state is actually intending to prevent is not the 'subsidizing' of unemployed union members per se, but the subsidizing of union-initiated work stoppages" (emphasis in original). Ibid.
50
This statement of the State's purpose reflects its second proffered justification, namely, that the granting of benefits would place the employer at an unfair disadvantage in negotiations with the unions. The District Court rejected this justification on the grounds that payments of funds to the steelworkers
51
"could hardly be deemed to put the coal miners in a position to refuse to negotiate with the steel companies until the companies reached a financial crisis, thereby causing the companies to yield to the unreasonable and economically unsound demands of the coal miners to prevent bankruptcy." Ibid.
52
Although the District Court was reacting to appellants' own hyperbole in speaking of financial crises and bankruptcy, it must be recognized that effects less than pushing the employer to bankruptcy may be rationally viewed as undesirable. The employer's costs go up with every laid-off worker who is qualified to collect unemployment. The only way for the employer to stop these rising costs is to settle the strike so as to return the employees to work. Qualification for unemployment compensation thus acts as a lever increasing the pressures on an employer to settle a strike. The State has chosen to leave this lever in existence for situations in which the employer has locked out his employees, but to eliminate it if the union has made the strike move. Regardless of our views of the wisdom or lack of wisdom of this form of state "neutrality" in labor disputes, we cannot say that the approach taken by Ohio is irrational.
53
The third rationale offered by the State is its interest in protecting the fiscal integrity of its compensation fund. This has been a continuing concern of Congress and the States with regard to unemployment compensation systems. See Report of the Committee on Economic Security, cited supra , at 482; Hearing on H. R. 6900 before the Senate Committee on Finance, 94th Cong., 1st Sess. (1975). It is clear that protection of the fiscal integrity of the fund is a legitimate concern of the State. We need not consider whether it would be "rational" for the State to protect the fund through a random means, such as elimination from coverage of all persons with an odd number of letters in their surnames. Here, the limitation of liability tracks the reasons found rational above, and the need for such limitation unquestionably provides the legitimate state interest required by the equal protection equation.
54
The District Court's opinion contains a paragraph declaring that, in addition to violating the Equal Protection Clause, the disqualification denied appellee due process. 408 F.Supp., at 1022. There is, however, no claim of denial of procedural due process, cf. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and we are unable to discern the basis for a claim that appellee has been denied substantive due process.
55
The judgment of the District Court is reversed.
56
It is so ordered.
57
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
1
In December 1975, § 4141.29(D)(1)(a) (1973), was amended to read:
"(D) Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits under the following conditions:
"(1) For any week with respect to which the administrator finds that:
"(a) His unemployment was due to a labor dispute other than a lockout at any factory, establishment, or other premises located in this or any other state and owned or operated by the employer by which he is or was last employed; and for so long as his unemployment is due to such labor dispute. No individual shall be disqualified under this provision if: (i) his employment was with such employer at any factory, establishment, or premises located in this state, owned or operated by such employer, other than the factory, establishment, or premises at which the labor dispute exists, if it is shown that he is not financing, participating in, or directly interested in such labor dispute, or, (ii) his employment was with an employer not involved in the labor dispute but whose place of business was located within the same premises as the employer engaged in the dispute, unless his employer is a wholly owned subsidiary of the employer engaged in the dispute, or unless he actively participates in or voluntarily stops work because of such dispute. If it is established that the claimant was laid off for an indefinite period and not recalled to work prior to the dispute, or was separated by the employer prior to the dispute for reasons other than the labor dispute, or that he obtained a bona fide job with another employer while the dispute was still in progress, such labor dispute shall not render the employee ineligible for benefits." Act (amended substitute Senate bill 173) effective Dec. 2, 1975.
The amendment added subdivision (i). Thus it is possible that if appellee's furlough had been effected after December 2, 1975, he would qualify for benefits. We are advised, however, that the amendment is not retroactive. Tr. of Oral Arg. 16.
2
Appellants state that these referrals are still before the Board of Review but are stayed pending decision in this case. Brief for Appellants 4.
3
At no point in this litigation has appellee claimed that § 4141.29(D)(1) (a) conflicts with or is pre-empted by any provision of the National Labor Relations Act, 29 U.S.C. § 151 et seq. We do not today consider or decide the relationship between that Act and a statute such as § 4141.29(D)(1)(a).
4
The District Court determined, however, that the class is defined by appellee in his complaint was overbroad. The court in its turn defined the class as "Hodory and approximately 1250 members of the United Steelworkers in Ohio, who became unemployed through no fault of their own, (and) were denied unemployment benefits by defendants for a specific period of time because of the labor dispute disqualification clause in § 4141.29(D)(1)(a), despite the fact that they may have been qualified in all other respects to receive the benefits." 408 F.Supp., at 1020. Members of this class included Hodory's fellow workers at USS and also employees of Republic Steel who were furloughed as a result of the strike at Republic's coal mines.
5
In view of our disposition of the case, we have no reason to reach this constitutional claim. USS and Republic each sought to intervene for purposes of taking an appeal here, and as parties in this Court. These motions were denied. See 429 U.S. 814, 97 S.Ct. 53, 50 L.Ed.2d 73 (1976).
6
Brief in Opposition to Jurisdiction (of the District Court), Record, Doc. 8. The defendants-appellants explicitly stated that an appeal would lie to the Court of Common Pleas. Id., at 2. It appears that the Board might give appellee's class claim special treatment so as to render the Board's decision eligible for direct review by the Supreme Court of Ohio. Ohio Rev.Code Ann. § 4141.28(N) (1973) (claims involving more than 500 persons). Neither appellee nor appellants suggest, however, that the Board is considering such action.
7
This is confirmed by the fact that Younger abstention was the sole abstention principle argued orally before the District Court. Record, Doc. 35, pp. 5-12, 27-29, and 47-49.
8
In Gibson v. Berryhill this Court actually held, however, that the Younger rule "or the principles of equity, comity, and federalism" for which it stands, 411 U.S., at 575, 93 S.Ct., at 1696, did not require the dismissal of that § 1983 suit in view of a proceeding then pending before a state Board of Optometry, since it was alleged, and the District Court there had concluded, that the Board's bias rendered it incompetent to adjudicate the issues. 411 U.S., at 575-577, 93 S.Ct., at 1696-1697.
9
The nature of the three appeals is not made clear. It is possible that a more expeditious route was available. See n.6, supra.
10
In view of this conclusion, we need not and do not express any view on whether the District Court erred in refusing to abstain on Younger grounds.
11
Pullman abstention, where deference to the state process may result in elimination or material alteration of the constitutional issue, surely does not require that this Court defer to the wishes of the parties concerning adjudication. See Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
12
It appears that the steel companies have taken an appeal from that ruling by the Bureau to the Board of Review, but decision of that appeal has been withheld pending resolution of the instant case. See Brief for AFL-CIO as Amicus Curiae 5 n. 3.
13
Section 5(d) of those bills provided that a claimant is disqualified:
"For any week in which it is found by the commission that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he is or was last employed, provided that this subsection shall not apply if it is shown to the satisfaction of the commission that:
"1. He is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and
"2. He does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute;
"and provided further that if in any case separate branches of work, which are commonly conducted as separate businesses in separate premises, are conducted in separate departments of the same premises, each such department shall for the purposes of this subsection be deemed to be a separate factory, establishment or other premises."
14
See Fierst & Spector, Unemployment Compensation in Labor Disputes, 49 Yale L.J. 461 (1940); Haggart, Unemployment Compensation During Labor Disputes, 37 Neb.L.Rev. 668 (1958); Shadur, Unemployment Benefits and the "Labor Dispute" Disqualification, 17 U.Chi.L.Rev. 294 (1950); Comment, Labor Dispute Disqualification Under the Ohio Unemployment Compensation Act, 10 Ohio St.L.J. 238 (1949), and cases cited therein. See generally Annot., 63 A.L.R.3d 88 (1975).
15
The statements read:
"The provision (forbidding cancellation) would not restrict State authority to prescribe the conditions under which a claimant would be 'otherwise eligible.' For example, benefits are not now and would not under the proposal be paid for a week of unemployment unless the claimant were available for work. It would not prevent a State from specifying the conditions for disqualification such as, for refusing suitable work, for voluntary quitting, for unemployment due to a labor dispute in the worker's plant, etc. . . .
"Your (in the Senate report this word is 'the') committee believes that the disqualification provisions of State unemployment compensation laws should be devised so as to prevent benefit payments to those responsible for their own unemployment, without undermining the basic objective of the unemployment insurance system to provide an income floor to those whose unemployment is beyond their control. Severe disqualifications particularly those which cancel earned monetary entitlement, are not in harmony with the basic purposes of an unemployment insurance system." H.R.Rep.No. 91-612, pp. 18-19 (1969); S.Rep.No. 91-752, pp. 23-24 (1970), U.S.Code Cong. & Admin.News 1970, pp. 3606, 3627.
16
See, for example, 26 U.S.C. § 3304(a)(5), which from the start has provided:
"(5) compensation shall not be denied in such State to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
"(A) if the position offered is vacant due directly to a strike, lockout, or other labor dispute;
"(B) if the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;
"(C) if as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization."
17
See Employment Security Amendments of 1970, 84 Stat. 695; Emergency Unemployment Compensation Act of 1971, 85 Stat. 811; Emergency Unemployment Compensation Act of 1974, 88 Stat. 1869; Unemployment Compensation Amendments of 1976, 90 Stat. 2667.
18
Appellee also claims that § 4141.29(D)(1)(a) creates an impermissible "irrebuttable presumption." This argument requires two assumptions. First, appellee must assume that the only purpose of the statute is to measure "innocence." Then he must assume that the disqualification provision represents a presumption that any person laid off due to a strike is not innocent. If the statute is designed to serve any purpose other than measuring innocence, appellee's implication of an irrebuttable presumption fails. As we discuss below, the statute clearly has purposes other than measuring the innocence of the disqualified worker.
| 12
|
431 U.S. 434
97 S.Ct. 1911
52 L.Ed.2d 486
James TRAINOR, etc., et al., Appellants,v.Juan HERNANDEZ et al., etc.
No. 75-1407.
Argued Jan. 18, 1977.
Decided May 31, 1977.
Syllabus
Rather than charging appellees with the crime of fraudulently concealing assets while applying for and receiving public assistance, the Illinois Department of Public Aid (IDPA) brought a civil action against appellees in state court seeking only a return of the welfare payments alleged to have been wrongfully received, and as part of the action a writ of attachment was issued and executed pursuant to the Illinois Attachment Act against appellees' property without notice or hearing. Instead of seeking a prompt hearing in the state court or moving there to quash the attachment on federal constitutional grounds, appellees filed suit against appellant IDPA officials in Federal District Court, alleging that the Attachment Act was unconstitutional in that it provided for deprivation of debtors' property without due process of law, and seeking, inter alia, return of the attached property. Declining to dismiss the complaint under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482, a three-judge court held the Act unconstitutional and issued an injunction directing return of appellees' attached property. Held: The District Court should have dismissed appellees' complaint under Younger, supra, and Huffman, supra, unless their state remedies were inadequate to litigate their federal due process claim, since the injunction asked for and issued by the court interfered with Illinois' efforts to utilize the Attachment Act as an integral part of the State's enforcement action. Pp. 440-447.
(a) The principles of Younger and Huffman are broad enough to apply to interference by a federal court with an ongoing civil enforcement action such as this, brought by the State in its sovereign capacity. Pp. 443-444.
(b) For the federal court to have proceeded with the case rather than remitting appellees to their remedies in the pending state suit confronts the State with the choice of engaging in duplicative litigation, thereby risking a temporary federal injunction, or of interrupting its enforcement proceedings pending the federal court's decision at some unknown time in the future; and forecloses the state court's opportunity to construe the challenged statute in the face of the federal constitutional challenges that would also be pending for decision before it. P. 445.
(c) There was no basis for the District Court's proceeding to judgment on the ground that extraordinary circumstances warranted federal interference. There is no suggestion that the pending state action was brought in bad faith or to harass appellees and no basis for finding that the Attachment Act violated "express constitutional provisions in every clause, sentence and paragraph and in whatever manner and against whomever an effort might be made to apply it." Pp. 446-447.
405 F.Supp. 757, reversed and remanded.
John A. Dienner, III, Chicago, Ill., for appellees Finley and Elrod in support of the appellants.
Paul J. Bargiel, Chicago, Ill., for appellants.
Fred L. Lieb, Chicago, Ill., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
The Illinois Department of Public Aid (IDPA) filed a lawsuit in the Circuit Court of Cook County, Ill., on October 30, 1974, against appellees Juan and Maria Hernandez, alleging that they had fraudulently concealed assets while applying for and receiving public assistance. Such conduct is a crime under Illinois law, Ill.Rev.Stat., c. 23, § 11-21 (1973). The IDPA, however, proceeded civilly and sought only return of the money alleged to have been wrongfully received. The IDPA simultaneously instituted an attachment proceeding against appellees' property. Pursuant to the Illinois Attachment Act, Ill.Rev.Stat., c. 11 (1973) (Act), the IDPA filed an affidavit setting forth the nature and amount of the underlying claim and alleging that the appellees had obtained money from the IDPA by fraud.1 The writ of attachment was issued automatically2 by the clerk of the court upon receipt of this affidavit.3 The writ was then given to the sheriff who executed it, on November 5, 1974, on money belonging to appellees in a credit union. Appellees received notice of the attachment, freezing their money in the credit union, on November 8, 1974, when they received the writ, the complaint, and the affidavit in support of the writ. The writ indicated a return date for the attachment proceeding of November 18, 1974.4 Appellees appeared in court on November 18, 1974, and were informed that the matter would be continued until December 19, 1974. Appellees never filed an answer either to the attachment or to the underlying complaint.5 They did not seek a prompt hearing, nor did they attempt to quash the attachment on the ground that the procedures surrounding its issuance rendered it and the Act unconstitutional. Instead appellees filed the instant lawsuit in the United States District Court for the Northern District of Illinois on December 2, 1974, seeking, inter alia, return of the attached money. The federal complaint alleged that the appellees' property had been attached pursuant to the Act and that the Act was unconstitutional in that it provided for the deprivation of debtors' property without due process of law. Appellees as plaintiffs sought to represent a class of those "who have had or may have their property attached without notice or hearing upon the creditor's mere allegation of fraudulent conduct pursuant to the Illinois Attachment Act." App. 6-7. They named as defendants appellants Trainor and O'Malley, officials of the IDPA, and sought declaration of a defendant class made up of all the court clerks in the Circuit Courts of Illinois, and of another defendant class of all sheriffs in Illinois. They sought an injunction against Trainor and O'Malley forbidding them to seek attachments under the Act and an injunction against the clerks and sheriffs forbidding them to issue or serve writs of attachment under the Act. Appellees also sought preliminary relief in the form of an order directing the Sheriff of Cook County to release the property which had been attached. Finally, appellees sought the convening of a three-judge court pursuant to 28 U.S.C. § 2284.
2
The District Court declined to rule on the request for preliminary relief because the parties had agreed that one-half of the money in the credit union would be returned. A three-judge court was convened. It certified the suit as a plaintiff and defendant class action as appellees had requested. App. 63. In an opinion dated December 19, 1975, almost one year after the return date of the attachment in state court, it declined to dismiss the case under the doctrine of 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), stating:
3
"In Huffman, the State of Ohio proceeded under a statute which gave an exclusive right of action to the state. By contrast, the Illinois Attachment Act provides a cause of action for any person, public or private. It is mere happenstance that the State of Illinois was the petitioner in this attachment proceeding. It is likewise coincidental that the pending state proceedings may arguably be quasi-criminal in nature; under the Illinois Attachment Act, they need not be. These major distinctions preclude this Court from extending the principles of Younger, based on considerations of equity, comity and federalism, beyond the quasi-criminal situation set forth in Huffman." Hernandez v. Danaher, 405 F.Supp. 757, 760 (1975).
4
Proceeding to the merits, it held §§ 1, 2, 2a, 6, 8, 10, and 14 of the Act to be "on (their face) patently violative of the due process clause of the Fourteenth Amendment to the United States Constitution." 405 F.Supp., at 762. It ordered the clerk of the court and the Sheriff of Cook County to return to appellees the rest of their attached property; it enjoined all clerks and all sheriffs from issuing or serving attachment writs pursuant to the Act and ordered them to release any currently held attached property to its owner; and it enjoined appellants Trainor and O'Malley from authorizing applications for attachment writs pursuant to the Act. App. 65-66. Appellants appealed to this Court under 28 U.S.C. § 1253, claiming that under Younger and Huffman principles the District Court should have dismissed the suit without passing on the constitutionality of the Act and that the Act is in any event constitutional.6 Since we agree with appellants that Younger and Huffman principles do apply here, we do not reach their second claim.
5
Because our federal and state legal systems have overlapping jurisdiction and responsibilities, we have frequently inquired into the proper role of a federal court, in a case pending before it and otherwise within its jurisdiction, when litigation between the same parties and raising the same issues is or apparently soon will be pending in a state court. More precisely, when a suit is filed in a federal court challenging the constitutionality of a state law under the Federal Constitution and seeking to have state officers enjoined from enforcing it, should the federal court proceed to judgment when it appears that the State has already instituted proceedings in the state court to enforce the challenged statute against the federal plaintiff and the latter could tender and have his federal claims decided in the state court?
6
Younger v. Harris, supra, and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), addressed these questions where the already pending state proceeding was a criminal prosecution and the federal plaintiff sought to invalidate the statute under which the state prosecution was brought. In these circumstances, the Court ruled that the Federal District Court should issue neither a declaratory judgment nor an injunction but should dismiss the case. The first justification the Court gave for this rule was simply 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, supra, 401 U.S. at 43-44, 91 S.Ct. at 750.
7
Beyond the accepted rule that equity will ordinarily not enjoin the prosecution of a crime, however, the Court voiced a "more vital consideration," 401 U.S., at 44, 91 S.Ct., at 750, namely, that in a Union where both the States and the Federal Government are sovereign entities, there are basic concerns of federalism which counsel against interference by federal courts, through injunctions or otherwise, with legitimate state functions, particularly with the operation of state courts. Relying on cases that declared that courts of equity should give "scrupulous regard (to) the rightful independence of state governments," Beal v. Missouri Pacific R. Co., 312 U.S. 45, 50, 61 S.Ct. 418, 421, 85 L.Ed. 577 (1941), the Court held, that in this intergovernmental context, the two classic preconditions for the exercise of equity jurisdiction assumed new dimensions. Although the existence of an adequate remedy at law barring equitable relief normally would be determined by inquiring into the remedies available in the federal rather than in the state courts, Great Lakes Co. v. Huffman, 319 U.S. 293, 297, 63 S.Ct. 1070, 1072, 87 L.Ed. 1407 (1943), here the inquiry was to be broadened to focus on the remedies available in the pending state proceeding. " 'The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.' " Younger v. Harris, supra, 401 U.S., at 45, 91 S.Ct., at 751, quoting Fenner v. Boykin, 271 U.S. 240, 243-244, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926). Dismissal of the federal suit "naturally presupposes the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved." Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973). "The policy of equitable restraint . . . is founded on the premise that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights." Kugler v. Helfant, 421 U.S. 117, 124, 95 S.Ct. 1524, 1531, 44 L.Ed.2d 15 (1975).
8
The Court also concluded that the other precondition for equitable relief irreparable injury would not be satisfied unless the threatened injury was both great and immediate. The burden of conducting a defense in the criminal prosecution was not sufficient to warrant interference by the federal courts with legitimate state efforts to enforce state laws; only extraordinary circumstances would suffice.7 As the Court later explained, to restrain a state proceeding that afforded an adequate vehicle for vindicating the federal plaintiff's constitutional rights "would entail an unseemly failure to give effect to the principle that state courts have the solemn responsibility equally with the federal courts" to safeguard constitutional rights and would "reflec(t) negatively upon the state court's ability" to do so. Steffel v. Thompson, 415 U.S. 452, 460-461, 462, 94 S.Ct. 1209, 1216, 1217, 39 L.Ed.2d 505 (1974). The State would be prevented not only from "effectuating its substantive policies, but also from continuing to perform the separate function of providing a forum competent to vindicate any constitutional objections interposed against those policies." Huffman v. Pursue, Ltd., 420 U.S., at 604, 95 S.Ct., at 1208.
9
Huffman involved the propriety of a federal injunction against the execution of a judgment entered in a pending state-court suit brought by the State to enforce a nuisance statute. Although the state suit was a civil rather than a criminal proceeding, Younger principles were held to require dismissal of the federal suit. Noting that the State was a party to the nuisance proceeding and that the nuisance statute was "in aid of and closely related to criminal statutes," the Court concluded that a federal injunction would be "an offense to the State's interest in the nuisance litigation (which) is likely to be every bit as great as it would be were this a criminal proceeding." 420 U.S., at 604, 95 S.Ct. at 1208. Thus, while the traditional maxim that equity will not enjoin a criminal prosecution strictly speaking did not apply to the nuisance proceeding in Huffman, the " 'more vital consideration' " of comity, id., 420 U.S. at 601, 95 S.Ct. at 1208, quoting Younger v. Harris, 401 U.S., at 44, 91 S.Ct., at 750, counseled restraint as strongly in the context of the pending state civil enforcement action as in the context of a pending criminal proceeding. In these circumstances, it was proper that the federal court stay its hand.
10
We have recently applied the analysis of Huffman to proceedings similar to state civil enforcement actions judicial contempt proceedings. Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). The Court again stressed the "more vital consideration" of comity underlying the Younger doctrine and held that the state interest in vindicating the regular operation of its judicial system through the contempt process whether that process was labeled civil, criminal, or quasi-criminal was sufficiently important to preclude federal injunctive relief unless Younger standards were met.
11
These cases control here. An action against appellees was pending in state court when they filed their federal suit. The state action was a suit by the State to recover from appellees welfare payments that allegedly had been fraudulently obtained. The writ of attachment issued as part of that action. The District Court thought that Younger policies were irrelevant because suits to recover money and writs of attachment were available to private parties as well as the State; it was only because of the coincidence that the State was a party that the suit was "arguably" in aid of the criminal law. But the fact remains that the State was a party to the suit in its role of administering its public-assistance programs. Both the suit and the accompanying writ of attachment were brought to vindicate important state policies such as safeguarding the fiscal integrity of those programs. The state authorities also had the option of vindicating these policies through criminal prosecutions. See supra, at 435. Although, as in Juidice, the State's interest here is "(p)erhaps . . . not quite as important as is the State's interest in the enforcement of its criminal laws . . . or even its interest in the maintenance of a quasi-criminal proceeding . . .," 430 U.S., at 335, 97 S.Ct., at 1217, the principles of Younger and Huffman are broad enough to apply to interference by a federal court with an ongoing civil enforcement action such as this, brought by the State in its sovereign capacity.8
12
For a federal court to proceed with its case rather than to remit appellees to their remedies in a pending state enforcement suit would confront the State with a choice of engaging in duplicative litigation, thereby risking a temporary federal injunction, or of interrupting its enforcement proceedings pending decision of the federal court at some unknown time in the future. It would also foreclose the opportunity of the state court to construe the challenged statute in the face of the actual federal constitutional challenges that would also be pending for decision before it, a privilege not wholly shared by the federal courts. Of course, in the case before us thetate statute was invalidated and a federal injunction prohibited state officers from using or enforcing the attachment statute for any purpose. The eviscerating impact on many state enforcement actions is readily apparent.9 This disruption of suits by the State in its sovereign capacity, when combined with the negative reflection on the State's ability to adjudicate federal claims that occurs whenever a federal court enjoins a pending state proceeding, leads us to the conclusion that the interests of comity and federalism on which Younger and Samuels v. Mackell primarily rest apply in full force here. The pendency of the state-court action called for restraint by the federal court and for the dismissal of appellees' complaint unless extraordinary circumstances were present warranting federal interference or unless their state remedies were inadequate to litigate their federal due process claim.
13
No extraordinary circumstances warranting equitable relief were present here. There is no suggestion that the pending state action was brought in bad faith or for the purpose of harassing appellees. It is urged that this case comes within the exception that we said in Younger might exist where a state 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.' " 401 U.S., at 53-54, 91 S.Ct., at 755, quoting Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941). Even if such a finding was made below, which we doubt (see supra, at 439), it would not have been warranted in light of our cases. Compare North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), with Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).
14
As for whether appellees could have presented their federal due process challenge to the attachment statute in the pending state proceeding, that question, if presented below, was not addressed by the District Court, which placed its rejection of Younger and Huffman on broader grounds. The issue is heavily laden with local law, and we do not rule on it here in the first instance.10
15
The grounds on which the District Court refused to apply the principles of Younger and Huffman were infirm; it was therefore error, on those grounds, to entertain the action on behalf of either the named or the unnamed plaintiffs and to reach the issue of the constitutionality of the Illinois attachment statute.11
16
The judgment is therefore reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.
17
It is so ordered.
18
Mr. Justice STEWART substantially agrees with the views expressed in the dissenting opinions of Mr. Justice BRENNAN and Mr. Justice STEVENS. Accordingly, he respectfully dissents from the opinion and judgment of the Court.
19
Mr. Justice BLACKMUN, concurring.
20
I join the Court's opinion and write only to stress that the substantiality of the State's interest in its proceeding has been an important factor in abstention cases under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), from the beginning. In discussing comity, the Court in Younger clearly indicated that both federal and state interests had to be taken into account:
21
"The concept does not mean blind deference to 'States' Rights' any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." Id., at 44, 91 S.Ct., at 751.
22
Consistently with this requirement of balancing the federal and state interests, the Court in previous Younger cases has imposed a requirement that the State must show that it has an important interest to vindicate in its own courts before the federal court must refrain from exercising otherwise proper federal jurisdiction. In Younger itself, the Court relied on the State's vital concern in the administration of its criminal laws. In Huffman v. Pursue, Inc., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the Court stressed the fact that it dealt with a quasi-criminal state proceeding to which the State was a party. The proceeding was both in aid of and closely related to criminal statutes. Thus, the State's underlying policy interest in the litigation was deemed to be as great as the interest found in Younger. Similarly, in Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), the Court found that the State's interest in its contempt procedures was substantial.
23
In cases where the State's interest has been more attenuated, the Court has refused to order Younger abstention. Thus, in Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), in which a state prosecution was merely threatened, the federal court was free to reach the merits of the claim for a declaratory judgment. Id., at 462, 94 S.Ct., at 1217. In such a case, "the opportunity for adjudication of constitutional rights in a federal forum, as authorized by the Declaratory Judgment Act, becomes paramount." Ellis v. Dyson, 421 U.S. 426, 432, 95 S.Ct. 1691, 1695, 44 L.Ed.2d 274 (1975). See generally Kanowitz, Deciding Federal Law Issues in Civil Proceedings: State Versus Federal Trial Courts, 3 Hastings Const.L.Q. 141 (1976).
24
Application of these principles to the instant case leads me to agree with the Court's order reversing and remanding the case. Like the Court, I am satisfied that a state proceeding was pending. Ante, at 444, 446, n.9. I, too, find significant the fact that the State was a party in its sovereign capacity to both the state suit and the federal suit. Ante, at 444. Here, I emphasize the importance of the fact that the state interest in the pending state proceeding was substantial. In my view, the fact that the State had the option of proceeding either civilly or criminally to impose sanctions for a fraudulent concealment of assets while one applies for and receives public assistance demonstrates that the underlying state interest is of the same order of importance as the interests in Younger and Huffman. The propriety of abstention should not depend on the State's choice to vindicate its interests by a less drastic, and perhaps more lenient, route. In addition, as the Court notes, the state court proceeding played an important role in safeguarding the fiscal integrity of the public assistance programs. Since the benefits of the recovery of fraudulently obtained funds are enjoyed by all the taxpayers of the State, it is reasonable to recognize a distinction between the State's status as creditor and the status of private parties using the same procedures.
25
For me, the existence of the foregoing factors brings this case squarely within the Court's prior Younger abstention rulings.
26
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
27
The Court continues on, to me, the wholly improper course of extending Younger principles to deny a federal forum to plaintiffs invoking 42 U.S.C. § 1983 for the decision of meritorious federal constitutional claims when a civil action that might entertain such claims is pending in a state court. Because I am of the view that the decision patently disregards Congress' purpose in enacting § 1983 to open federal courts to the decision of such claims without regard to the pendency of such state civil actions and because the decision indefensibly departs from prior decisions of this Court, I respectfully dissent.
28
* An attachment proceeding against appellees' credit union savings was instituted by the Illinois Department of Public Aid (IDPA) under the Illinois Attachment Act simultaneously with the filing of a civil lawsuit in state court for the recovery of public welfare funds allegedly fraudulently obtained. The attachment was initiated when IDPA filled in the blanks on a standard-form "Affidavit for Attachment" stating:
29
"The defendants Juan and Maria Hernandez within two years preceding the filing of this affidavit fraudulently concealed or disposed of property so as to hinder or delay their creditors." (Italics indicate matter inserted in blanks by IDPA.) App. 18.
30
The wording of the affidavit repeats almost verbatim the language of the Illinois Act,1 and provides no underlying factual allegations upon which a determination can be made whether the conclusion of fraudulent concealment or disposition of property is justified.2 The writ of attachment was issued as a matter of course by the clerk of the court upon receipt of the affidavit, and the writ was executed on November 5, 1974.
31
Appellees appeared in state court on the return date, November 18, 1974, and were informed that the hearing on the validity of the attachment was continued until December 19, 1974. In the meantime, appellees deprived of the use of their savings faced pending rent and car repair bills, and past due electricity, gas, and telephone bills. On December 2, appellees filed a complaint under 42 U.S.C. § 1983 in Federal District Court seeking a declaratory judgment and an injunction against enforcement of the Illinois Attachment Act. On December 5, two weeks before the continued state-court hearing, appellees sought a temporary restraining order to release their credit union savings from the custody of the sheriff. The District Court effected an agreement between the parties whereby IDPA agreed to the release of one-half of the attached funds, and accordingly did not act on the motion for the temporary restraining order.3
32
A three-judge District Court was convened. The District Court found that it was not required to abstain from deciding the constitutional merits of appellees' challenge, and enjoined the enforcement of the Act on the ground that the Act was "patently and flagrantly violative of the constitution." Hernandez v. Danaher, 405 F.Supp. 757, 760 (ND Ill.1975). This Court reverses and holds that the District Court should have dismissed the suit, thus continuing the course initiated in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), and furthered this Term in Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), of extending Younger principles to pending civil actions.
II
33
I have already set out at some length the reasons for my disagreement with the Court's extension of Younger abstention principles to civil cases, particularly actions under 42 U.S.C. § 1983, Huffman v. Pursue, Ltd., supra, at 613, 95 S.Ct., at 1212 (dissenting opinion), Juidice v. Vail, supra, at 341, 97 S.Ct., at 1220 (dissenting opinion), and will not repeat them here. The Court suggests that this case, like Huffman, involves a statute enacted in aid of the criminal law. In Huffman, the State of Ohio brought a statutory nuisance suit in state court to close a theater that had previously been adjudged to have shown obscene films. Huffman stated, in words quoted by the Court today, that the nuisance proceeding "was 'in aid of and closely related to criminal statutes.' " Ante, at 443. The Court states the precise question in this case to be:
34
"(S)hould the federal court proceed to judgment when it appears that the State has already instituted proceedings in the state court to enforce the challenged statute against the federal plaintiff and the latter could tender and have his federal claims decided in the state court?" Ante, at 440.
35
Emphasizing that the State sued in state court to "vindicate important state policies," the Court concludes that "the principles of Younger and Huffman are broad enough to apply to interference by a federal court with an ongoing civil enforcement action such as this, brought by the State in its sovereign capacity." Ante, at 444.
36
In framing the question and its answer this narrowly, the Court apparently desires once more to leave "for another day" the question of the applicability of Younger abstention principles to civil suits generally. Ante, at 445 n. 8; Juidice, supra, at 345 n., 97 S.Ct., at 1222 n. (BRENNAN, J., dissenting); see Huffman, supra, at 607, 95 S.Ct., at 1209. But the Court's insistence that "the interests of comity and federalism on which Younger and Samuels v. Mackell primarily rest apply in full force here," ante, at 446, is the signal that "merely the formal announcement is being postponed," Juidice, supra, at 345 n., 97 S.Ct., at 1222 n. (BRENNAN, J., dissenting). Younger and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), dismissed federal-court suits because the plaintiffs sought injunctions against pending criminal prosecutions. I agreed with those results because "(p)ending state criminal proceedings have always been viewed as paradigm cases involving paramount state interests." Juidice, supra, 430 U.S., at 345, 97 S.Ct., at 1222 (BRENNAN, J., dissenting). But abstention principles developed to avoid interfering with state criminal prosecutions are manifestly inapplicable here.
37
In this case the federal plaintiffs seek an injunction only against the use of statutory attachment proceedings which, properly speaking, are not part of the pending civil suit at all. The relief granted here in no way interfered with or prevented the State from proceeding with its suit in state court. It merely enjoined the use of an unconstitutional mechanism for attaching assets from which the State hoped to satisfy its judgment if it prevailed on the merits of the underlying lawsuit. To say that the interest of the State in continuing to use an unconstitutional attachment mechanism to insure payment of a liability not yet established brings into play "in full force" "all the interests of comity and federalism" present in a state criminal prosecution is simply wrong. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), a § 1983 suit challenging a prejudgment replevin statute, addressed precisely this point. Since the plaintiffs had not sought "an injunction against any pending or future court proceeding as such . . . (but rather) challenged only the summary extra-judicial process of prejudgment seizure of property," Fuentes concluded that Younger principles posed no bar to a federal court's granting the relief sought. 407 U.S., at 71 n. 3, 92 S.Ct., at 1989. See also Lynch v. Household Finance Corp., 405 U.S. 538, 554-555, 92 S.Ct. 1113, 1123, 31 L.Ed.2d 424 (1972), and Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).
38
The application of Younger principles here is also inappropriate because even in the underlying lawsuit the State seeks only a civil recovery of money allegedly fraudulently received. The Court relies on the State's fortuitous presence as a plaintiff in the state-court suit to conclude that the suit is closely related to a criminal suit, but I am hard pressed to understand why the "mere happenstance," 405 F.Supp., at 760, that the State of Illinois rather than a private party invoked the Attachment Act makes this so. The Court's reliance on the presence of the State here may suggest that it might view differently an attachment under the same Act at the instance of a private party, but no reason is advanced why the State as plaintiff should enjoy such an advantage in its own courts over the ordinary citizen plaintiff.4 Under any analysis, it seems to me that this solicitousness for the State's use of an unconstitutional ancillary proceeding to a civil lawsuit is hardly compelled by the great principles of federalism, comity, and mutual respect between federal and state courts that account for Younger and its progeny.
39
The principles that give strength to Younger simply do not support an inflexible rule against federal courts' enjoining state civil proceedings. Younger was justified primarily on the basis of the longstanding rule that "courts of equity . . . particularly should not act to restrain a criminal prosecution." 401 U.S., at 43, 91 S.Ct. at 750. A comparably rigid rule against enjoining civil proceedings was never suggested until Huffman, for in civil proceedings it cannot be assumed that state interests of compelling importance outweigh the interests of litigants seeking vindication of federal rights in federal court, particularly under a statute expressly enacted by Congress to provide a federal forum for that purpose. Even assuming that federal abstention might conceivably be appropriate in some civil cases, the transformation of what I must think can only be an exception into an absolute rule crosses the line between abstention and abdication.
40
When it enacted § 1983, Congress weighed the competing demands of "Our Federalism," and consciously decided to protect federal rights in the federal forum. As we have previously recognized, § 1983 was enacted for the express purpose of altering the federal-state judicial balance that had theretofore existed, and of "offering a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and the laws of the Nation." Mitchum v. Foster, 407 U.S. 225, 239, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972). State courts are, of course, bound to follow the Federal Constitution equally with federal courts, but Congress has clearly ordained, as constitutionally it may, that the federal courts are to be the "primary and powerful reliances" for vindicating federal rights under § 1983. Steffel v. Thompson, 415 U.S. 452, 464, 94 S.Ct. 1209, 1218, 39 L.Ed.2d 505 (1974) (emphasis in original). If federal courts are to be flatly prohibited, regardless of the circumstances of the individual claim of violation of federal rights, from implementing this "uniquely federal remedy" because of deference to purported state interests in the maintenance of state civil suits, the Court has "effectively cripple(d) the congressional scheme enacted in § 1983." Juidice v. Vail, 430 U.S., at 343, 97 S.Ct., at 1221 (BRENNAN, J., dissenting).
III
41
Even assuming, arguendo, the applicability of Younger principles, I agree with the District Court that the Illinois Attachment Act falls within one of the established exceptions to those principles. As an example of an "extraordinary circumstance" that might justify federal-court intervention, Younger referred to a statute that " 'might be 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.' " 401 U.S., at 53-54, 91 S.Ct. at 755, quoting Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941). Explicitly relying on this exception to Younger, the District Court held that the Illinois Act is "patently and flagrantly violative of the constitution." 405 F.Supp., at 760. The Court holds that this finding is insufficient to bring this case within the Younger exception because that exception "might exist where a state 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.' 401 U.S., at 53-54, 91 S.Ct. at 755, quoting Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941). Even if such a finding was made below, which we doubt . . . , it would not have been warranted in light of our cases." Ante, at 446-447. I disagree.
42
Obviously, a requirement that the Watson v. Buck formulation must be literally satisfied renders the exception meaningless, and, as my Brother STEVENS demonstrates, post, at 461-464, elevates to a literalistic definitional status what was obviously meant only to be illustrative and nonexhaustive. The human mind does not possess a clairvoyance that can foresee whether "every clause, sentence and paragraph" of a statute will be unconstitutional "in whatever manner and against whomever an effort might be made to apply it." The only sensible construction of the test is to treat the "every clause, etc.," wording as redundant, at least when decisions of this Court make clear that the challenged statute is "patently and flagrantly violative of the Constitution." I thought that the Court had decided as much in Kugler v. Helfant, 421 U.S. 117, 124, 95 S.Ct. 1524, 1530, 44 L.Ed.2d 15 (1975), in stating that "Younger left room for federal equitable intervention in a state criminal trial . . . where the state law to be applied in the criminal proceeding is 'flagrantly and patently violative of express constitutional prohibitions.' " (Emphasis supplied.)5
43
Clearly the Illinois Attachment Act is "flagrantly and patently violative of express constitutional prohibitions" under the relevant decisions of this Court. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), struck down a Georgia garnishment statute that permitted the issuance of a writ of garnishment by the court clerk upon the filing of an affidavit containing only conclusory allegations, and under which there was "no provision for an early hearing at which the creditor would be required to demonstrate at least probable cause for the garnishment." Id., at 607, 95 S.Ct., at 723. The Illinois Attachment Act is constitutionally indistinguishable from the Georgia statute struck down in North Georgia Finishing. As in that case, the affidavit filed here contained only conclusory allegations, which in this case were taken from a preprinted form requiring only that the affiant fill in the names of the persons whose property he wished to attach. Upon the filing of this form affidavit, the court clerk issued the writ of attachment as a matter of course. Far from requiring an "early hearing" at which to challenge the validity of the attachment, the Illinois Act provided that the party seeking the attachment could unilaterally set the return date of the writ at any time from 10 to 60 days from the date of its execution. Ill.Rev.Stat., c. 11, § 6 (1973). And, as this case demonstrates, the 60-day interval does not necessarily represent the outer limit for the actual hearing date, for the Illinois court here was willing to grant a 30-day continuance beyond the date provided in the writ of attachment, even though appellees appeared in court on the proper date and wished to go forward with the hearing at that time.
44
No one could seriously contend that the Illinois Act even remotely resembles that sustained in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), and thus falls within the exception to Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), and North Georgia Finishing, supra, carved out by that case. W. T. Grant upheld a Louisiana sequestration statute under which a writ of sequestration was issued only after the filing of an affidavit in which " 'the grounds relied upon for the issuance of the writ clearly appear(ed) from specific facts,' " 416 U.S., at 605, 94 S.Ct., at 1899. The showing of grounds for the issuance of the writ was made before a judge rather than a court clerk, id., at 606, 94 S.Ct., at 1899, and the debtor was entitled "immediately (to) have a full hearing on the matter of possession following the execution of the writ," id., at 610, 94 S.Ct. at 1901. None of those procedural safeguards is provided by the Illinois Act. The three-judge District Court unanimously and correctly concluded that the Act "is on its face patently violative of the due process clause of the Fourteenth Amendment." 405 F.Supp., at 762.
45
The Court gives only bare citations to North Georgia Finishing and W. T. Grant, ante, at 447, and declines to discuss or analyze them in even the most cursory manner. These decisions so clearly support the District Court's holding under any sensible construction of the Younger exception that the Court's silence, and its insistence upon compliance with the literal wording of Watson v. Buck, only confirms my conviction that the Court is determined to extend to "state civil proceedings generally the holding of Younger," Huffman v. Pursue, Ltd., 420 U.S., at 613, 95 S.Ct., at 1212, and to give its exceptions the narrowest possible reach. I respectfully dissent.
46
Mr. Justice STEVENS, dissenting.
47
Today the Court adds four new complexities to a doctrine that has bewildered other federal courts for several years.1 First, the Court finds a meaningful difference between a state procedure which is "patently and flagrantly violative of the Constitution" and one that 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."2 Second, the Court holds that an unconstitutional collection procedure may be used by a state agency, though not by others, because there is "a distinction between the State's status as creditor and the status of private parties using the same procedures."3 Third, the Court's application of the abstention doctrine in this case provides even greater protection to a State when it is proceeding as an ordinary creditor than the statutory protection mandated by Congress for the State in its capacity as a tax collector. Fourth, without disagreeing with the District Court's conclusion that the Illinois attachment procedure is unconstitutional, the Court remands in order to enable the District Court to decide whether that invalid procedure provides an adequate remedy for the vindication of appellees' federal rights. A comment on each of these complexities may shed light on the character of the abstention doctrine as now viewed by the Court.
48
* The District Court found the Illinois attachment procedure "patently and flagrantly violative of the constitution." Hernandez v. Danaher, 405 F.Supp. 757, 760 (N.D.Ill.1975). This Court, on the other hand, writes:
49
"It is urged that this case comes within the exception that we said in Younger might exist where a state 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.' 401 U.S., at 53-54, 91 S.Ct. 755, quoting Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941). Even if such a finding was made below, which we doubt . . . , it would not have been warranted in light of our cases." Ante, at 446-447 (emphasis added).4
50
Since there is no doubt whatsoever as to what the District Court actually said, this Court's expression of doubt can only refer to its uncertainty as to whether a finding that the crux of the statute is patently and flagrantly unconstitutional is sufficient to satisfy the requirement that the statute be patently and flagrantly unconstitutional "in every clause, sentence and paragraph . . . ." It is, therefore, appropriate to consider what is left of this exception to the Younger doctrine after today's decision.
51
The source of this exception is the passage Mr. Justice Black had written some years earlier in Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416, a case which involved a complicated state antitrust Act. On the basis of its conclusion that certain sections were unconstitutional, a three-judge District Court had enjoined enforcement of the entire Act.5 This Court reversed, holding: first, that the invalidity of a part of a statute would not justify an injunction against the entire Act; and second, that in any event the eight sections in question were valid.
52
In his explanation of the first branch of the Court's holding, Mr. Justice Black pointed out that there are few, if any, statutes that are totally unconstitutional in every part.6 Since Watson involved a new statute which had not been construed by any state court, and since such construction might have affected its constitutionality, Mr. Justice Black's comment emphasized the point that an untried state statute should not be invalidated by a federal court before the state court has an opportunity to construe it. This consideration is not present in a case involving an attack on a state statute that has been in use for more than a century. Nothing in Watson implies that a limited injunction against an invalid portion of a statute of long standing would be improper.
53
When he wrote the Court's opinion in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 482, Mr. Justice Black quoted the foregoing excerpt from the Watson case as an example of a situation in which it would be appropriate for a federal court to enjoin a pending state criminal prosecution.7 He did not, however, imply that his earlier language rigidly defined the boundaries of one kind of exception from the equitable rationale underlying the Younger decision itself.
54
Today the Court seems to be saying that the "patently and flagrantly unconstitutional" exception to Younger -type abstention is unavailable whenever a statute has a legitimate title, or a legitimate severability clause, or some other equally innocuous provision. If this is a fair reading of the Court's opinion, the Court has given Mr. Justice Black's illustrative language definitional significance. In effect, this treatment preserves an illusion of flexibility in the application of a Younger -type abstention, but it actually eliminates one of the exceptions from the doctrine. For the typical constitutional attack on a statute focuses on one, or a few, objectionable features. Although, as Mr. Justice Black indicated in Watson, it is conceivable that there are some totally unconstitutional statutes, the possibility is quite remote. More importantly, the Court has never explained why all sections of any statute must be considered invalid in order to justify an injunction against a portion that is itself flagrantly unconstitutional. Even if this Court finds the constitutional issue less clear than did the District Court, I do not understand what governmental interest is served by refusing to address the merits at this stage of the proceedings.
II
55
The Court explicitly does not decide "whether Younger principles apply to all civil litigation." Ante, at 445 n.8. Its holding in this case therefore rests squarely on the fact that the State, rather than some other litigant, is the creditor that invoked the Illinois attachment procedure. This rationale cannot be tenable unless principles of federalism require greater deference to the State's interest in collecting its own claims than to its interest in providing a forum for other creditors in the community. It would seem rather obvious to me that the amount of far less concern to the sovereign than the integrity of its own procedures. Consequently, the fact that a State is a party to a pending proceeding should make it less objectionable to have the constitutional issue adjudicated in a federal forum than if only private litigants were involved. I therefore find it hard to accept the Court's contrary evaluation as a principled application of the majestic language in Mr. Justice Black's Younger opinion.
III
56
The State has a valid interest in collecting taxes or other obligations. In recognition of that need and in a desire to minimize federal interference with state matters, Congress has provided that a federal court may not enjoin the collection of state taxes if the taxpayer has a "plain, speedy, and efficient remedy" under state law.8 Congress had not, however, placed any restriction on the power of a federal court to decide whether the taxpayer's remedy is, in fact, plain, speedy and efficient.9 Quite the contrary, by qualifying the prohibition against enjoining the collection of state taxes, Congress has actually directed the federal courts to review the adequacy of a taxpayer's remedies.
57
Moreover, the Court has repeatedly held that when a state remedy is uncertain, the federal court must provide relief. As Mr. Justice Holmes put it, "we ought not to leave the plaintiffs to a speculation upon what the State Court might say if an action at law were brought." Wallace v. Hines, 253 U.S. 66, 68, 40 S.Ct. 435, 436, 64 L.Ed. 782.10
58
The doctrine in Younger developed from the same equitable principles that have been applied to interpret 28 U.S.C. § 1341.11 In cases in which this Court has been confronted with that statutory restriction, it has not been reluctant to decide in the first instance whether a state remedy is adequate. Congress has provided no special protection from federal interference for a state agency suing to collect nontax obligations. Equitable considerations (as well as considerations of comity and federalism) do preclude unwarranted interference with litigation brought by such an agency, but surely the agency is entitled to no greater protection than the state tax collector. Nevertheless, the Court is now fashioning a nonstatutory abstention doctrine which requires even greater deference to the State as an ordinary litigant than Congress regarded as appropriate for the State's more basic fiscal needs.
IV
59
The Court's decision to remand this litigation to the District Court to decide whether the Illinois attachment procedure provides a debtor with an appropriate forum in which to challenge the constitutionality of the Illinois attachment procedure is ironic. For that procedure includes among its undesirable features a set of rules which effectively foreclose any challenge to its constitutionality in the Illinois courts.
60
Although it is true that § 27 of the Illinois Attachment Act, Ill.Rev.Stat., c. 11, § 27 (1973), allows the defendant to file a motion to quash the attachment, the purpose of such a motion is to test the sufficiency and truth of the facts alleged in the affidavit or the adequacy of the attachment bond. Section 28 of the Act precludes consideration of any other issues.12 Even if contrary to a fair reading the statute might be construed to allow consideration of a constitutional challenge on a motion to quash, a trial judge may summarily reject such a challenge without fear of reversal; for an order denying such a motion is interlocutory and nonappealable.13 The ruling on the validity of an attachment does not become final until the underlying tort or contract claim is resolved. At that time, the attachment issue will, of course, be moot because the prevailing party will then be entitled to the property regardless of the validity of the attachment.
61
Because it is so clear that the proceeding pending in the state court did not afford the appellees in this case an adequate remedy for the violation of their federal constitutional rights,14 the Court's disposition points up the larger problem confronting litigants who seek to challenge any state procedure as violative of the Due Process Clause of the Fourteenth Amendment.
62
As I suggested in my separate opinion in Juidice v. Vail, 430 U.S. 339, 97 S.Ct. 1219, a principled application of the rationale of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, forecloses abstention in cases in which the federal challenge is to the constitutionality of the state procedure itself.15 Since this federal plaintiff raised a serious question about the fairness of the Illinois attachment procedure, and since that procedure does not afford a plain, speedy, and efficient remedy for his federal claim, it necessarily follows that Younger abstention is inappropriate.
63
Thirty years ago Mr. Justice Rutledge characterized a series of Illinois procedures which effectively foreclosed consideration of the merits of federal constitutional claims as a "procedural labyrinth . . . made up entirely of blind alleys." Marino v. Ragen, 332 U.S. 561, 567, 68 S.Ct. 240, 244, 92 L.Ed. 170. Today Illinois litigants may appropriately apply that characterization to the Court's increasingly Daedalian doctrine of abstention.
64
I respectfully dissent.
1
Under § 1 of the Act, a writ will issue only upon allegation in the affidavit of one of the following nine grounds:
"First: Where the debtor is not a resident of this State.
"Second: When the debtor conceals himself or stands in defiance of an officer, so that process cannot be served upon him.
"Third: Where the debtor has departed from this State with the intention of having his effects removed from this State.
"Fourth: Where the debtor is about to depart from this State with the intention of having his effects removed from this State.
"Fifth: Where the debtor is about to remove his property from this State to the injury of such creditor.
"Sixth: Where the debtor has within 2 years preceding the filing of the affidavit required, fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder or delay his creditors.
"Seventh: Where the debtor has, within 2 years prior to the filing of such affidavit, fraudulently concealed or disposed of his property so as to hinder or delay his creditors.
"Eighth: Where the debtor is about fraudulently to conceal, assign, or otherwise dispose of his property or effects, so as to hinder or delay his creditors.
"Ninth: Where the debt sued for was fraudulently contracted on the part of the debtor: Provided, the statements of the debtor, his agent or attorney, which constitute the fraud, shall have been reduced to writing, and his signature attached thereto, by himself, agent or attorney."
2
Under § 2 of the Act, in cases sounding in tort the writ is not issued until a judge has examined the plaintiff under oath and determined that the damages suffered exceed the amount of the attachment.
3
Section 2 of the Act provides in part:
"2. Affidavit Statement Examination under oath. § 2. To entitle a creditor to such a writ of attachment, he or his agent or attorney shall make and file with the clerk of the circuit court, an affidavit setting forth the nature and amount of the claim, so far as practicable, after allowing all just credits and set-offs, and any one or more of the causes mentioned in section 1, and also stating the place of residence of the defendants, if known, and if not known, that upon diligent inquiry the affiant has not been able to ascertain the same together with a written statement, either embodied in such affidavit or separately in writing, executed by the attorney or attorneys representing the creditor, to the effect that the attachment action invoked by such affidavit does or does not sound in tort, also a designation of the return day for the summons to be issued in said action."
Since the State was a party, the normal requirement that the plaintiff post a bond in an amount equal to twice the amount sued for, did not apply and no bond was posted. See § 4a of the Act.
4
Section 6 of the Act provides:
"The writ of attachment required in the preceding section shall be directed to the sheriff (and, for purpose only of service of summons, to any person authorized to serve writs of summons), or in case the sheriff is interested, or otherwise disqualified or prevented from acting, to the coroner of the county in which the suit is commenced, and shall be made returnable on a return day designated by the plaintiff, which day shall not be less than ten days or more than sixty days after its date."
5
Section 27 of the Act provides:
"The defendant may answer, traversing the facts stated in the affidavit upon which the attachment issued, which answer shall be verified by affidavit; and if, upon the trial thereon, the issue shall be found for the plaintiff, the defendant may answer the complaint or file a motion directed thereto as in other cases, but if found for the defendant, the attachment shall be quashed, and the costs of the attachment shall be adjudged against the plaintiff but the suit shall proceed to final judgment as though commenced by summons."
6
Appellees argue that the sheriffs and clerks have not perfected their appeals and that the IDPA officials cannot litigate in connection with their appeals the validity of the injunction directing the clerk of the court to return appellees' property in the credit union. The argument is meritless. The IDPA officials were parties below; the order directing the clerk to return the property attached for the benefit of IDPA affects their interests in a vital way; and their ability to obtain review of such an order cannot depend on whether the clerk over whom IDPA has no control chooses to perfect his appeal.
7
See Kugler v. Helfant, 421 U.S. 117, 124-125, 95 S.Ct. 1524, 1530-31, 44 L.Ed.2d 15 (1975):
"Although the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution alone do not constitute 'irreparable injury' in the 'special legal sense of that term,' (Younger v. Harris, 401 U.S.) at 46, 91 S.Ct., at 751, the Court in Younger left room for federal equitable intervention in a state criminal trial where there is a showing of 'bad faith' or 'harassment' by state officials responsible for the prosecution, id., at 54, 91 S.Ct. at 755, where the state law to be applied in the criminal proceeding is ' "flagrantly and patently violative of express constitutional prohibitions," ' id., at 53, 91 S.Ct. at 755, or where there exist other 'extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment.' Ibid. In the companion case of Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701, the Court explained that '(o)nly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.' Id., at 85, 91 S.Ct. (674.) at 677. See Mitchum v. Foster, 407 U.S. 225, 230-231, 92 S.Ct. 2151, 2156, 32 L.Ed.2d 705.
"The policy of equitable restraint expressed in Younger v. Harris, in short, is founded on the premise that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights. See Steffel v. Thompson, 415 U.S. 452, 460, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505. Only if 'extraordinary circumstances' render the state court incapable of fairly and fully adjudicating the federal issues before it, can there be any relaxation of the deference to be accorded to the state criminal process. The very nature of 'extraordinary circumstances,' of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings. (Footnote omitted.) But whatever else is required, such circumstances must be 'extraordinary' in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation."
8
Title 28 U.S.C. § 2283 provides that "(a) court of the United States may not grant an injunction to stay proceedings in a State court except as
expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." The section is not applicable here because this 42 U.S.C. § 1983 action is an express statutory exception to its application, Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); but it is significant for present purposes that the section does not discriminate between civil and criminal proceedings pending in state courts. Furthermore, 28 U.S.C. § 1341 provides that district courts shall not enjoin, suspend, or restrain the levy or collection of any tax under state law where there are adequate remedies available in state tribunals.
Prior cases in this Court that at the time counseled restraint in actions seeking to enjoin state officials from enforcing state statutes or implementing public policies, did not necessarily distinguish between the type of proceedings civil or criminal pending or contemplated by state officers. Wilson v. Schnettler, 365 U.S. 381, 384-385, 81 S.Ct. 632, 634-635, 5 L.Ed.2d 620 (1961); Allegheny County v. Mashuda Co., 360 U.S. 185, 189-190, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959); Alabama Public Service Comm'n v. Southern R. Co., 341 U.S. 341, 349-350, 71 S.Ct. 762, 768, 95 L.Ed. 1002 (1951); Burford v. Sun Oil Co., 319 U.S. 315, 317-318, 63 S.Ct. 1098, 1099, 87 L.Ed. 1424 (1943); Great Lakes Co. v. Huffman, 319 U.S. 293, 297-298, 63 S.Ct. 1070, 1072-1073, 87 L.Ed. 1407 (1943); Brillhart v. Excess Ins. Co., 316 U.S. 491, 494-495, 62 S.Ct. 1173, 1175, 86 L.Ed. 1620 (1942); Watson v. Buck, 313 U.S. 387, 400-401, 61 S.Ct. 962, 966-967, 85 L.Ed. 1416 (1941); Beal v. Missouri Pacific R. Co., 312 U.S. 45, 49-50, 61 S.Ct. 418, 420-421, 85 L.Ed. 577 (1941); Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 95-97, 55 S.Ct. 678, 680-681, 79 L.Ed. 1322 (1935); Pennsylvania v. Williams, 294 U.S. 176, 185, 55 S.Ct. 380, 385, 79 L.Ed. 841 (1935); Hawks v. Hamill, 288 U.S. 52, 60-61, 53 S.Ct. 240, 243, 77 L.Ed. 610 (1933); Matthews v. Rodgers, 284 U.S. 521, 525-526, 52 S.Ct. 217, 219, 76 L.Ed. 447 (1932); Massachusetts State Grange v. Benton, 272 U.S. 525, 527, 47 S.Ct. 189, 190, 71 L.Ed. 387 (1926); Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926).
As in Juidice v. Vail, 430 U.S. 327, 336 n.13, 97 S.Ct. 1211, 1218, 51 L.Ed.2d 376 (1977), we have no occasion to decide whether Younger principles apply to all civil litigation.
9
Appellees argue that the injunction issued below in no way interfered with a pending state case. They point to the fact that only the attachment proceeding was interfered with the underlying fraud action may continue unimpeded and claim that the attachment proceeding is not a court proceeding within the doctrine of Younger and Huffman. In this regard they rely on Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); and Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). None of these cases control here.
In this case the attachment was issued by a court clerk and is very much a part of the underlying action for fraud. Moreover, the attachment in this case contained a return date on which the parties were to appear in court and at which time the appellees would have had an opportunity to contest the validity of the attachment. Thus the attachment proceeding was "pending" in the state courts within the Younger and Huffman doctrine at the time of the federal suit.
10
The parties are in disagreement on this issue, the State squarely asserting, and the appellees denying, that the federal due process claim could have been presented and decided in the pending attachment proceeding. Mr. Justice STEVENS, in dissent, offers additional reasons not relied on by appellees and not addressed by the State for concluding that the state suit did not offer an adequate forum for litigating the federal claim. We do not resolve these conflicting views.
11
Appellees have argued here that the relief granted in favor of other class members is not barred by Younger and Huffman because state cases were not pending against some of them. Since the class should never have been certified, we need not address this argument.
1
Illinois Rev.Stat., c. 11, § 1 (1973), provides:
"In any court of competent jurisdiction, a creditor having a money claim . . . may have an attachment against the property of his debtor . . . either at the time of instituting suit or thereafter . . . in any one of the following cases:
"Seventh: Where the debtor has, within 2 years prior to the filing of such affidavit, fraudulently concealed or disposed of his property so as to hinder or delay his creditors."
2
In fact, it appears that appellees had not "concealed or disposed of property so as to hinder or delay their creditors" even if the allegations of the unsworn attachment complaint are taken as true. The complaint only alleges that they fraudulently concealed personal property in order to obtain public assistance, not that this concealment was undertaken to avoid payment to creditors. If any part of the form affidavit is applicable to appellees, it appears to be § 1(i), which tracks Ill.Rev.Stat., c. 11, § 1 (Ninth) (1973):
"The debt sued for was fraudulently contracted on the part of the defendant hhhhhh and statements of hhhhhh agent hhhhhh or attorney, which constitute the fraud, have been reduced to writing and hhhhhh signature hhhhhh attached thereto, by hhhhhh sel(f) hhhhhh agent hhhhhh or attorney hhhhhh." App. 18.
However, IDPA did not fill in the blanks of this portion of the form, and did not rely on it in seeking the writ of attachment.
3
The precise date of the agreement to release half of the attached funds does not appear in the record.
The Court points out that the District Court did not issue its opinion in this case until about one year after the date on which appellees could have had their continued hearing in state court to challenge the validity of the attachment. Ante, at 438-439. This is irrelevant since the motion for a temporary restraining order, filed two weeks before the continued hearing in the state court, resulted in the agreement to release half of appellees' savings. Thus, as a practical matter, appellees received important relief in the Federal District Court at a time when any relief in state court was highly speculative.
4
Even if the presence of the State as a plaintiff in the state-court proceeding is held to be of some significance, I fail to see why the federal courts should accord greater deference to the State's fiscal interest here than to the far more basic function of collecting state taxes. As my Brother STEVENS conclusively demonstrates, post, at 464-466, the standard applied by the Court today goes well beyond the statutory standard for a federal court enjoining the collection of taxes, which is predicated only upon a finding of no "plain, speedy and efficient remedy" under state law. 28 U.S.C. § 1341.
5
The quotation, in 421 U.S., at 125 n. 4, 95 S.Ct., at 1531, of the complete Buck sentence was carefully identified in Kugler as merely "one example of the type of circumstances that could justify federal intervention . . . ." Curiously, the Court, ante, at 442 n. 7, quotes Kugler's abridged formulation, but makes no attempt to explain this reference when it finally applies the "every clause, sentence and paragraph" test as the basis for its decision. Ante, at 446-447.
1
See, for example, Judge Pell's search for a synthesizing principle in his article, Abstention A Primrose Path by Any Other Name, 21 DePaul L.Rev. 926 (1972).
2
The Court, ante, at 447, quotes this excerpt from Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416, which in turn was quoted in Younger v. Harris, 401 U.S. 37, 53-54, 91 S.Ct. 746, 754-55, 27 L.Ed.2d 669.
3
See Mr. Justice BLACKMUN's concurring opinion, ante, at 450.
4
The cavalier statement that a finding of obvious unconstitutionality would not have been warranted by prior cases simply ignores the careful analysis of the serious defects in the Illinois statute identified in the opinion of the District Court, 405 F.Supp., at 760-762, and in Mr. Justice BRENNAN's dissenting opinion.
5
The Florida legislation involved in Watson v. Buck, regulated the business of persons holding music copyrights and declared certain combinations of such persons illegal as in restraint of trade. A three-judge District Court held that 8 sections of that statute conflicted with the federal copyright laws and, without considering the validity of the remaining 13 sections, enjoined enforcement of all 21 sections.
6
"Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is analogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case. It is of course conceivable that a statute might be 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." 313 U.S., at 402, 61 S.Ct., at 967.
7
"There may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment. For example, as long ago as the Buck case, supra, we indicated:
" 'It is of course conceivable that a statute might be 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.' 313 U.S., at 402, 61 S.Ct., at 967.
"Other unusual situations calling for federal intervention might also arise, but there is no point in our attempting now to specify what they might be." 401 U.S., at 53-54, 91 S.Ct., at 755.
8
28 U.S.C. § 1341.
9
Indeed, that kind of determination is routine business in a federal court. See, e. g., Tully v. Griffin, Inc., 429 U.S. 68, 97 S.Ct. 219, 50 L.Ed.2d 227.
10
See Hopkins v. Southern Cal. Tel. Co., 275 U.S. 393, 400, 48 S.Ct. 180, 182, 72 L.Ed. 329; Mountain States Power Co. v. Public Service Comm'n of Montana, 299 U.S. 167, 170, 57 S.Ct. 168, 169, 81 L.Ed. 99. ("A 'plain, speedy, and efficient remedy' cannot be predicated upon a problematical outcome of future consideration"); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 106, 65 S.Ct. 152, 154, 89 L.Ed. 101. As Mr. Justice Douglas wrote: "(T) here is such uncertainty concerning the (state) remedy as to make it speculative . . . whether the State affords full protection to the federal rights." Hillsborough v. Cromwell, 326 U.S. 620, 625, 66 S.Ct. 445, 449, 90 L.Ed. 358 (emphasis added), cited with approval just this Term in Tully v. Griffin, Inc., supra, 429 U.S., at 76, 97 S.Ct., at 223. In Hillsborough, this Court decided in the first instance that the state remedies were uncertain to the extent of being inadequate. Finally, in Shaffer v. Carter, 252 U.S. 37, 48, 40 S.Ct. 221, 224, 64 L.Ed. 445, this Court held that even though state procedures might be adequate to remedy the federal question as to the validity of the tax, there were no procedures to remedy the federal wrong in connection with the tax-collection procedures. "Hence, on this ground at least, resort was properly had to equity for relief; and since a court of equity does not 'do justice by halves,' and will prevent, if possible, a multiplicity of suits, the jurisdiction extends to the disposition of all questions raised by the bill." Ibid.
11
The equitable principles relied upon in Younger are of ancient vintage. In the first Judiciary Act of 1789 Congress directed that equity be withheld if a "plain, adequate and complete remedy may be had at law." In Scott v. Neely, 140 U.S. 106, 110, 11 S.Ct. 712, 714, 35 L.Ed. 358, this Court noted that Congress' prohibition was
"declaratory of the rule obtaining and controlling in equity proceedings from the earliest period in England, and always in this country. And so it has been often adjudged that whenever, respecting any right violated, a court of law is competent to render a judgment affording a plain, adequate and complete remedy, the party aggrieved must seek his remedy in such court, not only because the defendant has a constitutional right to a trial by jury, but because of the prohibition of the act of Congress to pursue his remedy in such cases in a court of equity."
One of the major cases relied upon the the Court, Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 299, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407, held that although Congress in § 1341 had not specifically prohibited declaratory judgments concerning the validity of state statutes, nonetheless, equitable principles required the same result.
"(W)e find it unnecessary to inquire whether the words of the statute may be so construed as to prohibit a declaration by federal courts concerning the invalidity of a state tax. For we are of the opinion that those considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes, save in exceptional cases, require a like restraint in the use of the declaratory judgment procedure." 319 U.S., at 299, 63 S.Ct., at 1073.
This pronouncement has been read as prohibiting declaratory judgments to the same extent as injunctive suits under § 1341. Illinois Central R. Co. v. Howlett, 525 F.2d 178 (C.A.7 1975) (Sprecher, J.).
12
Section 28, Ill.Rev.Stat., c. 11, § 28 (1973), provides that "(n)o writ of attachment shall be quashed, nor the property taken thereon restored, . . . if the plaintiff . . . shall cause a legal and sufficient affidavit or attachment bond to be filed, or the writ to be amended, . . . and in that event the cause shall proceed as if such proceedings had originally been sufficient." Thus, under § 28 the only valid question raised in a proceeding concerning the attachment is whether the facts pleaded in the affidavit or writ were true. And, of course, § 28 allows amendment of any improperly pleaded writ or affidavit.
13
Smith v. Hodge, 13 Ill.2d 197, 148 N.E.2d 793 (1958); Brignall v. Merkle, 296 Ill.App. 250, 16 N.E.2d 150 (1938); Rabits v. Live Oak, Perry & Gulf R. Co., 245 Ill.App. 589 (1927); American Mortgage Corp. v. First National Mortgage Corp., 345 F.2d 527, 528 (C.A.7 1965).
14
In the present case, the appellees appeared on the return date of the writ of attachment, November 18, 1974 (10 days after their property had been attached), and "were informed that the matter would be continued until December 19, 1974," ante, at 437, 31 days later. As the opinion below points out, the person who sues out the writ of attachment has absolute discretion under § 6 of the Act, Ill.Rev.Stat., c. 11, § 6 (1973), to set the return date of the writ of attachment anywhere from 10 to 60 days after the property has been attached. 405 F.Supp., at 762. The return date appears to be the first chance an attachment can be challenged; and as this case points up, the proceedings on the return date can be summarily continued for at least a month if not longer. Thus, property may well be attached for three months or longer before even a § 27 motion will be entertained.
As the court below also noted, "(s)ection 27 . . . does not give defendant an absolute right to a hearing on the attachment issue immediately after seizure." 405 F.Supp., at 762. Indeed, the Attachment Act contains no provision for a prompt hearing on the validity of the attachment. This should be compared with § 29 of the Act, Ill.Rev.Stat., c. 11, § 29 (1973), which requires "the court (to) immediately . . . direct a jury to be impaneled to inquire into the right of the property" in cases in which a person other than the defendant claims an interest in the property being attached. This deference to the needs for prompt action in response to an interpleading claimant signifies the general lax attitude the Act takes with regard to the rights of persons whose property has been attached.
The Court states that the appellees (who appeared on the return date "and were informed that the matter would be continued" for a month) "did not seek a prompt hearing, nor did they attempt to quash the attachment on the ground that the procedures surrounding its issuance rendered it and the Act unconstitutional." Ante, at 437-438. The State suggests that § 26 of the Act, Ill.Rev.Stat., c. 11, § 26 (1973), allows appellees to make an appropriate motion that the attachment statute is unconstitutional. However, § 26 provides that "provisions of the Civil Practice Act . . . shall apply to all proceedings hereunder, except as otherwise provided in this Act." (Emphasis added.) As we note in our discussion of § 28, supra, the statute does not authorize raising unconstitutionality as a defense to an attachment.
The State also cites Ill.Sup.Ct. Rule 184, which provides that a party may "call up a motion for disposition before or after" the time for its normal disposition. This, however, does not provide a prompt hearing; it only allows appellees to ask for one. The request may or may not be granted in the discretion of the court. Neither § 26 nor Rule 184 assures appellees a prompt hearing, and neither overrides the fact that § 28 appears to foreclose any defense of unconstitutionality in attacking an attachment.
15
There should be no abstention unless the state procedure affords a plain, speedy, and efficient remedy for the federal wrong; indeed, the opinion in Younger in basing its decision on basic equity principles acknowledges this as the fundamental requirement in application of the abstention doctrine. The majority opinion in this case states the question presented as whether abstention is proper when a "State has already instituted proceedings . . . and the (appellees) could tender and have (their) federal claims decided in the state court." Ante, at 440. It then proceeds to quote from numerous cases requiring an adequate state remedy for application of the abstention doctrine. Younger v. Harris, 401 U.S. 37, 45, 91 S.Ct. 746, 751, 27 L.Ed.2d 669, quoting Fenner v. Boykin, 271 U.S. 240, 243-244, 46 S.Ct. 492, 493, 70 L.Ed. 927 (requiring the federal plaintiff to "first set up and rely on his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection"); Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (dismissal of the federal suit as "naturally presuppos(ing) the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved"); Kugler v. Helfant, 421 U.S. 117, 124, 95 S.Ct. 1524, 1530, 44 L.Ed.2d 15 (abstention founded "on the premise that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights"). Ante, at 441. In my judgment, when a state procedure is challenged, an adequate forum must be one that is sufficiently independent of the alleged unconstitutional procedure to judge it impartially and to provide prompt relief if the procedure is found wanting. No Illinois procedure has been pointed to as providing such relief, and where the remedy is "uncertain," federal jurisdiction exists.
| 89
|
431 U.S. 581
97 S.Ct. 2002
52 L.Ed.2d 595
ALABAMA POWER COMPANY, Petitioner,v.Raymond E. DAVIS.
No. 76-451.
Argued April 25, 1977.
Decided June 6, 1977.
Syllabus
Respondent, who left employment with petitioner for military service but who returned after completion of such service and continued in employment until his retirement, held entitled under § 9 of the Military Selective Service Act, which requires an employer to rehire a returning veteran without loss of seniority, to credit toward his pension under petitioner's pension plan for his period of military service. Pp. 583-594.
(a) A benefit is a right of seniority secured to a veteran by § 9 if it would have accrued with reasonable certainty, as opposed to being subject to a significant contingency, had the veteran been continuously employed by the employer, McKinney v. Missouri-K.-T. R. Co., 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305; Tilton v. Missouri Pac. R. Co., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590, and if it is in the nature of a reward for length of service rather than short-term compensation for services rendered, Accardi v. Pennsylvania R. Co., 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717; Foster v. Dravo Corp., 420 U.S. 92, 95 S.Ct. 879, 43 L.Ed.2d 44. Pp. 585-589.
(b) Here, not only is the "reasonable certainty" requirement met on the basis of respondent's work history both before and after his military service, but it also appears that the "true nature" of the pension payments is a reward for length of service, especially in view of the lengthy period (20 years or 15 years if age 50) required by the pension plan for pension rights to vest in the employee. Pp. 591-594.
(c) Moreover, respondent's claim is supported by the functions of pension plans in assuring financial security for long-term employees and, by providing such security, in encouraging such employees to retire when their efficiency declines. P. 594.
542 F.2d 650, affirmed.
Allan A. Ryan, Jr., Washington, D. C., for respondent.
H. Hampton Boles, Birmingham, Ala., for petitioner.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Respondent Davis became a permanent employee of petitioner Alabama Power Co. on August 16, 1936, and continued to work until March 18, 1943, when he left to enter the military. After serving in the military for 30 months, he resumed his position with Alabama Power, where he worked until he retired on June 1, 1971. Davis received credit under the company pension plan for his service from August 16, 1937,1 until the date of his retirement, with the exception of the time he spent in the military and some time spent on strike. Davis claimed that § 9 of the Military Selective Service Act of 1967, 50 U.S.C. App. § 459(b),2 requires Alabama Power to give him credit toward his pension for his period of military service. With the assistance of the United States Attorney,3 he sued to vindicate that asserted right. The District Court, 383 F.Supp. 880 (N.D.Ala.1974), and the Court of Appeals for the Fifth Circuit, 542 F.2d 650 (1976), agreed with Davis. Because of the importance of the issue and a conflict among the Circuits,4 we granted certiorari, 429 U.S. 1037, 97 S.Ct. 731, 50 L.Ed.2d 748.5 We affirm.
2
* The Military Selective Service Act provides the mechanism for manning the Armed Forces of the United States. Section 9 of the Act evidences Congress' desire to minimize the disruption in individuals' lives resulting from the national need for military personnel. It seeks to accomplish this goal by guaranteeing veterans that the jobs they had before they entered the military will be available to them upon their return to civilian life. Specifically, § 9 requires that any qualified person who leaves a permanent position with any employer to enter the military, satisfactorily completes his military service, and applies for re-employment within 90 days of his discharge from the military,
3
"be restored by such employer or his successor in interest to such position or to a position of like seniority, status, and pay . . . unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so." 50 U.S.C. App. § 459(b)(B)(i).
4
Moreover, any person so restored to a position
5
"shall be considered as having been on furlough or leave of absence during his period of training and service in the armed forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration." 50 U.S.C.App. § 459(c)(1).
6
In our first confrontation with the predecessor of § 9,6 we held that the statutory protection against discharge within a year of re-employment did not protect a veteran from being laid off while nonveterans with greater seniority retained their jobs. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946). In reaching this conclusion, we announced two principles that have governed all subsequent interpretations of the re-employment rights of veterans. First, we stated that under the Act:
7
"(The veteran) does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war." Id., at 284-285, 66 S.Ct., at 1111.
8
Congress incorporated this doctrine in succeeding re-enactments of the re-employment provision. See 50 U.S.C. App. § 459(c)(2).7 The second guiding principle we identified was:
9
"This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need. . . . And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act." 328 U.S., at 285, 66 S.Ct., at 1111.
10
Our next cases were also concerned with the extent of the protection afforded rights that were clearly within the Act's scope. Trailmobile Co. v. Whirls, 331 U.S. 40, 67 S.Ct. 982, 91 L.Ed. 1328 (1947); Aeronautical Industrial Dist. Lodge 727 v. Campbell, 337 U.S. 521, 69 S.Ct. 1287, 93 L.Ed. 1513 (1949); Oakley v. Louisville & N. R. Co., 338 U.S. 278, 70 S.Ct. 119, 94 L.Ed. 87 (1949). More recently, however, our efforts have been directed at determining whether a particular right claimed by a veteran is an aspect of the "seniority" which the Act protects. We have been unable to rely on either the language or the legislative history of the Act when making these determinations, for neither contains a definition of "seniority."
11
We first faced this problem in McKinney v. Missouri-K.-T. R. Co., 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958). McKinney had been re-employed at a higher level than he had attained when he left for military service, with seniority in his new position dating from his return to work. When his job was abolished, he claimed that his seniority at the higher level should have dated from the time he would have been eligible to reach that level had he not served in the military. This Court rejected his claim because of the contingent nature of his expectation of being promoted from the job he previously held. That promotion, the Court found, depended "not simply on seniority or some other form of automatic progression, but on the exercise of discretion on the part of the employer." Id., at 272, 78 S.Ct., at 1227. Since the promotion would not have come automatically had McKinney continued to ride the seniority escalator, the Court concluded that neither the promotion nor a seniority date calculated as of the time he might have been promoted were incidents of the "seniority" protected by the Act.8
12
Six years later, the Court again considered whether a veteran was entitled to a seniority date calculated as if he had obtained a higher level position while in the military. Tilton v. Missouri Pac. R. Co., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964). Tilton had been promoted before he left the railroad to enter the military, but he had not worked enough days to complete the probationary period necessary to obtain permanent status and begin accumulating seniority in the higher level job. When he returned to the railroad, he successfully completed the remainder of the probationary period. The company set his seniority date as of the time he actually finished the probationary period; he claimed that the date should have been fixed as of the time he would have satisfied the probationary work requirement had it not been for his military service.
13
This Court agreed. Unlike the situation in McKinney, we found that the only management discretion involved was the decision to allow Tilton to assume probationary status in the higher level position, and that discretion had been exercised before he entered the military. Tilton's satisfactory completion of the probationary period after he was reinstated by the railroad was sufficient indication that he would have completed that period earlier if his tenure had not been interrupted by his service to his country. The mere possibility that his ride on the escalator might have been interrupted by some other circumstance could not be allowed to deny him the status he almost certainly would have obtained:
14
"In every veteran seniority case the possibility exists that work of the particular type might not have been availables that the veteran would not have worked satisfactorily during the period of his absence; that he might not have elected to accept the higher position; or that sickness might have prevented him from continuing his employment. In light of the purpose and history of this statute, however, we cannot assume that Congress intended possibilities of this sort to defeat the veteran's seniority rights." 376 U.S., at 180-181, 84 S.Ct., at 602.
15
In McKinney and Tilton, the Court decided whether the veterans' promotions were incidents of the "seniority" protected by the Act, but in both cases, the benefit claimed by the veterans earlier seniority dates was clearly "seniority." Our most recent cases have involved claims to benefits that could not be so easily classified. These cases have required us to consider not only the relative certainty of the benefit's accrual but also the nature of the benefit itself.
16
We first encountered this added complexity in Accardi v. Pennsylvania R. Co., 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966), a case involving a claim to severance pay. The petitioners in Accardi were tugboat firemen who had left their jobs for military service and had later been restored with appropriate seniority credit. When technological change led to the elimination of the position of tugboat fireman, the railroad agreed to provide severance pay, with the amount of the payment dependent on the employee's length of "compensated service." Since Accardi and his colleagues had not received compensation from the company during their military service, the railroad did not give them credit for that time when calculating their severance payments.
17
This Court ruled in favor of the firemen. It was clear that had the petitioners remained on their jobs, they would have received severance pay credit for the years they spent in the military. Therefore, the reasonable-certainty criterion established in McKinney and Tilton was satisfied. The company argued, however, that the payment was not based on, and so was not an incident of, seniority, but rather was based on total actual service to the railroad. While questioning the company's argument because of the "bizarre results possible under the definition of 'compensated service,' " 383 U.S., at 230, 86 S.Ct., at 771,9 we rejected it because the "real nature" of the payments was compensation for the lose rights and expectations that accrued as the employees' longevity on the job increased. Ibid. That nature could not be disguised by use of a "compensated service" formula to calculate the amount of the payments. Accordingly, we concluded that
18
"the amount of these allowances is just as much a perquisite of seniority as the more traditional benefits such as work preference and order of lay-off and recall." Ibid.
19
Failing to credit the veterans with their military service time when calculating their payments therefore violated the Act's requirement that they be reinstated without loss of seniority.10
20
Most recently, in Foster v. Dravo Corp., 420 U.S. 92, 95 S.Ct. 879, 43 L.Ed.2d 44 (1975), we dealt with another claim for payment because of time spent in military service. Foster had worked for his private employer for seven weeks in 1967, spent 18 months in the military, and returned to work for the last 13 weeks of 1968. He claimed that he was entitled to vacation pay for both years, although the collective-bargaining agreement granted full vacation benefits only for 25 weeks of work in a calendar year.
21
Again focusing on the nature of the benefit at issue, we rejected Foster's claim. Vacation benefits, we held, are "intended as a form of short-term compensation for work performed," id., at 100, 95 S.Ct., at 854, not as a reward for longevity with an employer.11 In reaching this conclusion, we noted the work requirement imposed by the collective-bargaining contract, the proportionate increase in vacation benefits that resulted from overtime work, and the availability of pro rata benefits if an employee was laid off before he had worked the required number of weeks. These facts, however, were sufficient only to "lend substantial support," ibid., to the employer's argument that the vacation benefits were a form of pay for work done. The nature of the benefits "the common conception of a vacation as a reward for and respite from a lengthy period of labor," id., at 101, 95 S.Ct., at 884 was decisive.
22
(1) Thus, our cases have identified two axes of analysis for determining whether a benefit is a right of seniority secured to a veteran by § 9. If the benefit would have accrued, with reasonable certainty, had the veteran been continuously employed by the private employer, and if it is in the nature of a reward for length of service, it is a "perquisite of seniority." If, on the other hand, the veteran's right to the benefit at the time he entered the military was subject to a significant contingency, or if the benefit is in the nature of short-term compensation for services rendered, it is not an aspect of seniority within the coverage of § 9. We evaluate respondent Davis' right to pension credit for his years in the military in light of these principles.
II
23
(2) Alabama Power established its pension plan on July 1, 1944, during the time Davis was in the military. The plan, which is funded entirely by the company, covers all "full-time regular employee(s)" who have completed one year of continuous service with the company and are at least 25 years old. App. 58-59. Under the labor agreements and practices of the company, a full-time regular employee is one who, with limited exceptions,12 works a 40-hour week. A covered employee has no vested right to any benefit from the plan until he had completed 20 years of service, which for this purpose includes time spent in the military, or has completed 15 years of service and attained the age of 50. Id., at 90-91.13 Normal retirement age under the plan is 65, but an employee with 20 years of "accredited service" can elect to retire any time after he has reached the age of 55. App. to Pet. for Cert. 43a-44a. Davis chose the early retirement option.
24
The concept of "accredited service" is a major determinant of the amount of benefits paid and is the source of the present controversy. The plan defines "accredited service" as the period of "future service" together with the period of "past service." Id., at 34a-35a. These terms, in turn, are defined as an employee's period of service after the initiation of the pension plan and his inclusion within it (future service) and his period of service prior to that date (past service). Id., at 35a. Future service is credited to an employee "for service rendered to the Company" as a full-time, regular employee and for periods of authorized leave of absence with pay. Employees on leave of absence without regular pay, and persons serving in the military, are not credited with future service during their absence from the company. Id., at 40a.14 Retirement benefits are calculated by the use of formulas in which years of accredited service are multiplied by an earnings factor.15 Had Davis received accredited service for the time he spent in the military, his monthly pension payment would have been $216.06 rather than the $198.95 to which the company said he was entitled.
25
It is clear that the reasonable-certainty requirement of McKinney and Tilton is satisfied in this case. Respondent's work history both before and after his military tour of duty demonstrates that if he had not entered the military, he would almost certainly have accumulated accredited service for the period between March 18, 1943, and October 8, 1945. Unpredictable occurrences might have intervened, but "we cannot assume that Congress intended possibilities of this sort to defeat the veteran's seniority rights." Tilton v. Missouri Pac. R. Co., 376 U.S., at 181, 84 S.Ct., at 602.
26
(3) Alabama Power contends, however, that pension payments should be viewed as compensation for service rendered like the vacation payments in Foster, rather than as a perquisite of seniority like the severance payments in Accardi. The company argues that the definition of accredited service in terms of full-time service to the company is a bona fide, substantial work requirement which, under Foster, "is strong evidence that the benefit in question was intended as a form of compensation." 420 U.S., at 99, 95 S.Ct., at 884. Since § 9 does not grant veterans the right to compensation for work they have not performed, Alabama Power concludes that Davis is not entitled to his claimed pension increase.
27
As we noted in our discussion of Foster, that case turned on the nature of vacation benefits, not on the particular formula by which those benefits were calculated. Even the most traditional kinds of seniority privileges could be as easily tied to a work requirement as to the more usual criterion of time as an employee. Yet, as we held in Fishgold, "no practice of employers . . . can cut down the service adjustment benefits which Congress has secured the veteran under the Act." 328 U.S., at 285, 66 S.Ct., at 1111. We must look beyond the overly simplistic analysis suggested by Alabama Power to the nature of the payments.
28
It is obvious that pension payments have some resemblance to compensation for work performed. Funding a pension program is a current cost of employing potential pension recipients, as are wages. The size of pension benefits is a subject of collective bargaining,16 and future benefits may be traded off against current compensation.17 The same observations, however, can be made about any benefit and therefore are of little assistance in determining whether a particular benefit recompenses labor or rewards longevity with an employer.
29
Other aspects of pension plans like the one established by petitioner18 suggest that the "true nature" of the pension payment is a reward for length of service. The most significant factor pointing to this conclusion is the lengthy period required for pension rights to vest in the employee. It is difficult to maintain that a pension increment is deferred compensation for a year of actual service when it is only the passage of years in the same company's employ, and not the service rendered, that entitles the employee to that increment. Moreover, because of the vesting requirement and the use of payment formulas that depend on earnings at the time of retirement, both the cost to the employer and the payment to the employee for each year of service depend directly on the length of time the employee continues to work for that employer. Periodic adjustments of the benefit formulas to account for unanticipated increases in living costs, see App. 74-84, emphasize the dissociation of payment levels from the work that Alabama Power claims the payments compensate.
30
The function of pension plans in the employment system also supports respondent's claim. A pension plan assures employees that by devoting a large portion of their working years to a single employer, they will achieve some financial security in their years of retirement. By rewarding lengthy service, a plan may reduce employee turnover and training costs and help an employer secure the benefits of a stable work force. See D. McGill, Fundamentals of Private Pensions 21-23 (3d ed. 1975). In addition, by providing economic security in retirement, pension plans encourage longtime employees whose working efficiency may be on the decline to retire and make way for younger workers. Id., at 21-22; S. Slichter, J. Healy, & E. Livernash, The Impact of Collective Bargaining on Management 374 (1960). The relationship between pension payments and passage of time as an employee is central to both of these functions.
31
We conclude, therefore, that pension payments are predominantly rewards for continuous employment with the same employer. Protecting veterans from the loss of such rewards when the break in their employment resulted from their response to the country's military needs is the purpose of § 9. That purpose is fulfilled in this case by requiring Alabama Power to pay Davis the pension to which he would have been entitled by virtue of his lengthy service if he had not been called to the colors. Accordingly, the judgment below is affirmed.
32
It is so ordered.
1
Employees do not become eligible to participate in the plan until they have worked for one year. See infra, at 590.
2
Section 459(b) has been recodified, without substantial change, as 38 U.S.C. § 2021 (1970 ed., Supp. V).
3
See 50 U.S.C. App. § 459(d), now codified at 38 U.S.C. § 2022 (1970 ed., Supp. V).
4
Compare Jackson v. Beech Aircraft Corp., 517 F.2d 1322 (CA10 1975) and Litwicki v. Pittsburgh Plate Glass Industries, Inc., 505 F.2d 189 (CA3 1974) (denying pension credit), with Smith v. Industrial Employers & Distributors Assn., 546 F.2d 314 (CA9 1976) (granting past service credit and denying future service credit).
5
The grant of certiorari was limited to the first question presented, excluding the issue of the applicability of the Alabama statute of limitations.
6
The Selective Training and Service Act of 1940, c. 720, § 8(b), 54 Stat. 890.
7
"It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment."
This provision is now codified at 38 U.S.C. § 2021(b)(2) (1970 ed., Supp. V).
8
"(Section) 9(c) does not guarantee the returning serviceman a perfect reproduction of the civilian employment that might have been his if he had not been called to the colors. Much there is that might have flowed from experience, effort, or chance to which he cannot lay claim under the statute. Section 9(c) does not assure him that the past with all its possibilities of betterment will be recalled. Its very important but limited purpose is to assure that those changes and advancements in status that would necessarily have occurred simply by virtue of continued employment will not be denied the veteran because of his absence in the military service." 357 U.S., at 271-272, 78 S.Ct., at 1226.
9
It was possible for an employee to receive credit for a full year of "compensated service" by working only seven well-timed days during the year. The company defined a month of "compensated service" as any month during which the employee worked one or more days, and a year of "compensated service" was defined as 12 such months, or a major portion thereof.
10
The Court also held that whatever the full scope of the statutory language governing "other benefits" contained in § 459(c), see supra, 583-584, that language was intended to add to the protections afforded the veteran's seniority rights, not to lessen those protections. 383 U.S., at 231-232, 86 S.Ct., at 772-773. The Court's conclusion that the severance payments were perquisites of seniority therefore made unnecessary consideration of the "other benefits" provision.
11
Under the collective-bargaining agreement in Foster, the length of an employee's vacation increased with his length of continuous employment with the firm. The company conceded that the employee's time in military service had to be counted in determining the length of his vacation. 420 U.S., at 101 n. 9, 95 S.Ct., at 885.
12
The established exceptions include annual vacations, paid holidays, 10 days of annual sick leave, which may be accumulated up to a maximum of 30 days, and up to three days' leave in case of a death in the employee's immediate family. In addition, longtime employees may be allowed up to nine months of extended sick leave.
13
The Employee Retirement Income Security Act of 1974, § 203, 88 Stat. 854, 29 U.S.C. § 1053 (1970 ed., Supp. V), establishes vesting requirements more favorable to employees than those described in the text. This law, which generally requires vesting within 10 to 15 years, did not affect respondent and, insofar as is relevant to the question presented in this case, does not alter the nature of pension plans.
14
A limited exception to this rule, see App. 61-62, was not applicable to Davis.
15
Davis' pension payment is calculated under § V4(b)(ii) of the plan. That section provides:
"The minimum Retirement Income payable after January 1, 1966 to an employee included in the Plan retiring from the service of the Company after January 1, 1966 at his Early Retirement Date (before adjustment for Provisional Payee designation, if any) shall be an amount equal to 1% of his monthly earnings on his Early Retirement Date multiplied by his years of Accredited Service, reduced by (specified amounts)." App. 70.
"Normal retirement income" under the plan is calculated by reference to specified percentages of an employee's earnings, exclusive of overtime during his years with the company. Id., at 65-68, 73. The amount to which an employee would be entitled under the "normal retirement income" formula has, however, been periodically adjusted upward by formulas which, like the formula applicable to Davis, call for multiplication of a percentage of recent earnings by the number of years of accredited service. See id., at 74-84.
16
Inland Steel Co. v. NLRB, 170 F.2d 247 (CA7 1948), cert. denied on this issue, 336 U.S. 960, 69 S.Ct. 887, 93 L.Ed. 1112 (1949), aff'd on other grounds, American Communications Ass'n C.I.O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950). The company contends that Inland Steel holds that pensions are "wages" and that they must therefore be classified as "other benefits," see n. 10 supra, under the Military Selective Service Act. Inland Steel concluded, however, only that pensions are a mandatory subject of collective bargaining under the National Labor Relations Act (NLRA) because they are either wages "or other conditions of employment." 170 F.2d at 249-255. Even if pensions are "wages" for the purposes of the NLRA, that classification would not control their treatment under the very different statute at issue in this case. Cf. United States v. Embassy Restaurant, 359 U.S. 29, 33, 79 S.Ct. 554, 556, 3 L.Ed.2d 601 (1959) (payments to union welfare fund may be "wages" under NLRA but not under Bankruptcy Act).
17
Cf. S. Slichter, J. Healy, & E. Livernash, The Impact of Collective Bargaining on Management 373 (1960) (pension plans encouraged during World War II by difficulty of obtaining general wage increases).
18
Petitioner's plan is a "defined benefit" plan, under which the benefits to be received by employees are fixed and the employer's contribution is adjusted to whatever level is necessary to provide those benefits. The other basic type of pension is a "defined contribution" plan, under which the employer's contribution is fixed and the employee receives whatever level of benefits the amount contributed on his behalf will provide. See 29 U.S.C. §§ 1002(34), (35) (1970 ed., Supp. V); Note, Fiduciary Standards and the Prudent Man Rule Under the Employee Retirement Income Security Act of 1974, 88 Harv.L.Rev. 960, 961-963 (1975). We intimate no views on whether defined contribution plans are to be treated differently from defined benefit plans under the Military Selective Service Act.
| 12
|
431 U.S. 633
97 S.Ct. 1993
52 L.Ed.2d 637
Harry ROBERTS, Petitioner,v.State of LOUISIANA.
No. 76-5206.
June 6, 1977.
PER CURIAM.
1
Petitioner Harry Roberts was indicted, tried, and convicted of the first-degree murder of Police Officer Dennis McInerney, who at the time of his death was engaged in the performance of his lawful duties. As required by a Louisiana statute, petitioner was sentenced to death. La.Rev.Stat.Ann. § 14:30(2) (1974).1 On appeal, the Supreme Court of Louisiana affirmed his conviction and sentence. 331 So.2d 11 (1976). Roberts then filed a petition for a writ of certiorari in this Court. The petition presented the question whether Louisiana's mandatory death penalty could be imposed pursuant to his conviction of first-degree murder as defined in subparagraph (2) of § 14:30.
2
Shortly before that petition was filed, we held in another case (involving a different petitioner named Roberts) that Louisiana could not enforce its mandatory death penalty for a conviction of first-degree murder as defined in subparagraph (1) of § 14:30 of La.Rev.Stat.Ann. (1974). Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (hereafter cited as Stanislaus Roberts for purposes of clarity). In the plurality opinion in that case, the precise question presented in this case was explicitly answered.2
3
This precise question was again answered by the Court in Washington v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1213 (1976). The petitioner in the Washington case had killed a policeman and was tried and sentenced to death under the same provision of the Louisiana statute as was the petitioner in the present case. We vacated the death sentence, holding: "Imposition and carrying out of the death penalty (in this case) constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Roberts v. Louisiana . . . ." Ibid. See also Sparks v. North Carolina, 428 U.S. 905, 96 S.Ct. 3213, 49 L.Ed.2d 1212 (1976); Green v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976).
4
Recognizing that this Court had already decided that a mandatory death sentence could not be imposed for the crime that Harry Roberts committed, the Attorney General of Louisiana initially conceded that "under this Court's decision in Stanislaus Roberts v. Louisiana, No. 75-5844, (the sentence of death in the present case) cannot be carried out unless, of course, this Court grants Louisiana's Application for Rehearing and modifies its former holding." Brief in Opposition 2-3. The Court nevertheless granted certiorari on November 8, 1976, 429 U.S. 938, 97 S.Ct. 352, 50 L.Ed.2d 307, and on November 29 limited the grant to the question "(w)hether the impostion and carrying out of the sentence of death for the crime of first-degree murder of a police officer under the law of Louisiana violates the Eighth and Fourteenth Amendments to the Constitution of the United States." 429 U.S. 975, 97 S.Ct. 482, 50 L.Ed.2d 583.
5
In Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976), this Court held that "the fundamental respect for humanity underlying the Eighth Amendment . . . 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." In Stanislaus Roberts, supra, we made clear that this principle applies even where the crime of first-degree murder is narrowly defined. See n. 2, supra.
6
(1) To be sure, the fact that the murder victim was a peace officer performing his regular duties may be regarded as an aggravating circumstance. There is a special interest in affording protection to these public servants who regularly must risk their lives in order to guard the safety of other persons and property.3 But it is incorrect to suppose that no mitigating circumstances can exist when the victim is a police officer. Circumstances such as the youth of the offender, the absence of any prior conviction, the influence of drugs, alcohol, or extreme emotional disturbance, and even the existence of circumstances which the offender reasonably believed provided a moral justification for his conduct are all examples of mitigating facts which might attend the killing of a peace officer and which are considered relevant in other jurisdictions.4
7
(2) As we emphasized repeatedly in Stanislaus Roberts and its companion cases decided last Term, it is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense.5 Because the Louisiana statute does not allow for consideration of particularized mitigating factors, it is unconstitutional.6
8
Accordingly, we hold that the death sentence imposed upon this petitioner violates the Eighth and Fourteenth Amendments and must be set aside. The judgment of the Supreme Court of Louisiana is reversed insofar as it upholds the death sentence upon petitioner. The case is remanded for further proceedings not inconsistent with this opinion.7
9
It is so ordered.
10
Mr. Chief Justice BURGER, dissenting.
11
I would sustain the Louisiana statute and I therefore dissent on the basis of my dissenting statement in Roberts v. Louisiana, 428 U.S. 325, 337, 96 S.Ct. 3001, 3008, 49 L.Ed.2d 974 (1976), and that of Mr. Justice WHITE, in Woodson v. North Carolina, 428 U.S. 280, 306, 96 S.Ct. 2978, 2992, 49 L.Ed.2d 944 (1976).
12
Mr. Justice BLACKMUN, with whom Mr. Justice WHITE and Mr. Justice REHNQUIST join, dissenting.
13
The Court, feeling itself bound by the plurality opinion in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (hereafter Stanislaus Roberts ), has painted itself into a corner. I did not join that plurality opinion, and I decline to be so confined. I therefore dissent from the Court's disposition of the present case and from its holding that the mandatory imposition of the death penalty for killing a peace officer, engaged in the performance of his lawful duties, constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. I would uphold the State's power to impose such a punishment under La.Rev.Stat.Ann. § 14:30(2) (1974), and I would reject any statements or intimations to the contrary in the Court's prior cases.
14
The per curiam opinion asserts that "the precise question presented in this case was explicitly answered" in Roberts. Ante, at 635. It also relies on the summary disposition of Washington v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1213 (1976), where a death sentence that had been imposed under § 14:30(2) was vacated and where it was stated that the imposition and carrying out of the death penalty constituted cruel and unusual punishment. Ante, at 635. Finally, the per curiam states that "it is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense." Ante, at 637. Since § 14:30(2) does not allow for consideration of mitigating factors, the per curiam strikes down the death sentence imposed on petitioner.
15
In my view, the question of the constitutionality of Louisiana's mandatory death penalty for killing a peace officer was not answered in Roberts. Washington may be said to be a summary ruling on the merits, but that case was decided without the benefit of plenary consideration, and without focusing on the identity and activity of the victim. I believe its result to be incorrect as a constitutional matter and I would disapprove and withhold its further application.
16
Stanislaus Roberts was charged and convicted under a different subsection, that is, § 14:30(1) of the Louisiana first-degree murder statute. See 428 U.S., at 327, 96 S.Ct., at 3003. See also ante, at 634-635. Subsection (1) provided a mandatory death penalty in the case where the killer had a specific intent to kill or to inflict great bodily harm and was engaged in the perpetration or attempted perpetration of aggravated kidnaping, aggravated rape, or armed robbery. See ante, at 634 n. 1. Subsection (2), in contrast, provides that first-degree murder is committed when the killer has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who is engaged in the performance of his lawful duties. Ibid. The two subsections obviously should involve quite different considerations with regard to the lawfulness of a mandatory death penalty, even accepting the analysis set forth in the joint opinions of last Term.* Thus, to the extent that the plurality in Roberts alluded to subsections of the Louisiana law that were not before the Court, those statements are nonbinding dicta. It is indisputable that carefully focused consideration was not given to the special problem of a mandatory death sentence for one who has intentionally killed a police officer engaged in the performance of his lawful duties. I therefore approach this case as a new one, not predetermined and governed by the plurality in Roberts.
17
Washington may present a different problem. It did decide the issue now before the Court, but it did so without the benefit of full briefing and argument, and it was one of three pending Louisiana cases treated as a cluster and routinely remanded at the Term's end in the immediate wake of Roberts. Because an explicit finding was made that the death penalty constituted cruel and unusual punishment, perhaps Washington is not to be treated in the same way as summary affirmances were treated in Edelman v. Jordan, 415 U.S. 651, 670-671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974). I would simply inquire, as to Washington, whether its holding should not be overruled, now that the Court has had the benefit of more careful and complete consideration of the issue.
18
On the merits, for reasons I have expressed before, I would not find § 14:30(2) constitutionally defective. See Furman v. Georgia, 408 U.S. 238, 405-414, 92 S.Ct. 2726, 2811-2816, 33 L.Ed.2d 346 (1972) (dissenting opinion). See also Stanislaus Roberts, 428 U.S., at 337-363, 96 S.Ct., at 3008 (White, J., dissenting). Furthermore, even under the opinions of last Term, I would conclude that § 14:30(2) falls within that narrow category of homicide for which a mandatory death sentence is constitutional. See Gregg v. Georgia, 428 U.S. 153, 186, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976); Woodson v. North Carolina, 428 U.S. 280, 287 n. 7, 292-293, n. 25, 96 S.Ct. 2978, 2983, 2985, 49 L.Ed.2d 944 (1976); Stanislaus Roberts, 428 U.S., at 334 n. 9, 96 S.Ct., at 3006. Since the decision in Washington is inconsistent with this view, I would overrule it.
19
I should note that I do not read the per curiam opinion today as one deciding the issue of the constitutionality of a mandatory death sentence for a killer of a peace officer for all cases and all times. Reference to the plurality opinion in Roberts reveals that the Louisiana statute contained what that opinion regarded as two fatal defects: lack of an opportunity to consider mitigating factors, and standardless jury discretion inherent in the Louisiana responsive verdict system. Without the latter, as here, a different case surely is presented. Furthermore, it is evident, despite the per curiam's general statement to the contrary, that mitigating factors need not be considered in every case; even the per curiam continues to reserve the issue of a mandatory death sentence for murder by a prisoner already serving a life sentence. Ante, at 637 n. 5. Finally, it is possible that a state statute that required the jury to consider, during the guilt phase of the trial, both the aggravating circumstance of killing a peace officer and relevant mitigating circumstances would pass the plurality's test. Cf. Jurek v. Texas, 428 U.S. 262, 270-271, 96 S.Ct. 2950, 2955-2956, 49 L.Ed.2d 929 (1976). For me, therefore, today's decision must be viewed in the context of the Court's previous criticism of the Louisiana system; it need not freeze the Court into a position that condemns every statute with a mandatory death penalty for the intentional killing of a peace officer.
20
Mr. Justice REHNQUIST, with whom Mr. Justice WHITE joins, dissenting.
21
The Court today holds that the State of Louisiana is not entitled to vindicate its substantial interests in protecting the foot soldiers of an ordered society by mandatorily sentencing their murderers to death. This is so even though the State has demonstrated to a jury in a fair trial, beyond a reasonable doubt, that a particular defendant was the murderer, and that he committed the act while possessing "a specific intent to kill, or to inflict great bodily harm upon, . . . a peace officer who was engaged in the performance of his lawful duties . . .. " La.Rev.Stat.Ann. § 14:30(2) (1974). That holding would have shocked those who drafted the Bill of Rights on which it purports to rest, and would commend itself only to the most imaginative observer as being required by today's "evolving standards of decency."
22
I am unable to agree that a mandatory death sentence under such circumstances violates the Eighth Amendment's proscription against "cruel and unusual punishments." I am equally unable to see how this limited application of the mandatory death statute violates even the scope of the Eighth Amendment as seen through the eyes of last Term's plurality in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (hereafter Stanislaus Roberts ). Nor does the brief per curiam opinion issued today demonstrate why the application of a mandatory death sentence to the criminal who intentionally murders a peace officer performing his official duties should be considered "cruel and unusual punishment" in light of either the view of society when the Eighth Amendment was passed, Gregg v. Georgia, 428 U.S. 153, 176-177, 96 S.Ct. 2909, 2926-2927, 49 L.Ed.2d 859 (1976); the "objective indicia that reflect the public attitude" today, id., at 173, 96 S.Ct., at 2925; or even the more generalized "basic concept of human dignity" test relied upon last Term in striking down several more general mandatory statutes.
23
While the arguments weighing in favor of individualized consideration for the convicted defendant are much the same here as they are for one accused of any homicide, the arguments weighing in favor of society's determination to impose a mandatory sentence for the murder of a police officer in the line of duty are far stronger than in the case of an ordinary homicide. Thus the Court's intimation that this particular issue was considered and decided last Term in Stanislaus Roberts, supra, simply does not wash. A footnoted dictum in Roberts discussing a different section of the Louisiana law from the one now before us scarcely rises to the level of plenary, deliberate consideration which has traditionally preceded a declaration of unconstitutionality.
24
Such a meager basis for stare decisis would be less offensive were we not dealing with large questions of how men shall be governed, and how liberty and order should be balanced in a civilized society. But authority which might suffice to determine whether the rule against perpetuities applies to a particular devise in a will does not suffice when making a constitutional adjudication that a punishment imposed by properly enacted state law is "cruel and unusual." Mr. Justice Frankfurter wisely noted that a "footnote hardly seems to be an appropriate way of announcing a new constitutional doctrine," Kovacs v. Cooper, 336 U.S. 77, 90-91, 69 S.Ct. 448, 455, 93 L.Ed. 513 (1949); it is hardly a more appropriate device by which to anticipate a constitutional issue not presented by the case in which it appears. This seemingly heedless wielding of our power is least acceptable when we engage in what Mr. Justice Holmes described as "the gravest and most delicate duty that this Court is called upon to perform." Blodgett v. Holden, 275 U.S. 142, 147-148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (1927) (separate opinion).
25
Five Terms ago, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), this Court invalidated the then-current system of capital punishments, condemning jury discretion as resulting in "freakish" punishment. The Louisiana Legislature has conscientiously determined, in an effort to respond to that holding, that the death sentence would be made mandatory upon the conviction of particular types of offenses, including, as in the case before us, the intentional killing of a peace officer while in the performance of his duties. For the reasons stated by Mr. Justice WHITE for himself, THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and me in his dissent in Stanislaus Roberts, supra, and by me in my dissent in Woodson v. North Carolina, 428 U.S. 280, 308, 96 S.Ct. 2978, 2993, 49 L.Ed.2d 944 (1976), I am no more persuaded now than I was then that a mandatory death sentence for all, let alone for a limited class of, persons who commit premeditated murder constitutes "cruel and unusual punishment" under the Eighth and Fourteenth Amendments.
26
But even were I now persuaded otherwise by the plurality's analysis last Term, and were I able to conclude that the mandatory death penalty constituted "cruel and unusual punishment" when applied generally to all those convicted of first-degree murder, I would nonetheless disagree with today's opinion. Louisiana's decision to impose a mandatory death sentence upon one convicted of the particular offense of premeditated murder of a peace officer engaged in the performance of his lawful duties is clearly not governed by the holding of Roberts, and I do not believe that it is controlled by the reasoning of the plurality's opinion in that case. Today's opinion assumes, without analysis, that the faults of the generalized mandatory death sentence under review in Roberts, must necessarily inhere in such a sentence imposed on those who commit this much more carefully limited and far more serious crime.1 In words that would be equally appropriate today, Mr. Justice White noted last Term, 428 U.S., at 358, 96 S.Ct., at 3018:
27
"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." Under the analysis of last Term's plurality opinion, a State, before it is constitutionality entitled to put a murderer to death, must consider aggravating and mitigating circumstances. It is possible to agree with the plurality in the general case without at all conceding that it follows that a mandatory death sentence is impermissible in the specific case we have before us: the deliberate killing of a peace officer. The opinion today is willing to concede that "the fact that the murder victim was a peace officer performing his regular duties may be regarded as an aggravating circumstance." Ante, at 636. But it seems to me that the factors which entitle a State to consider it as an aggravating circumstance also entitle the State to consider it so grave an aggravating circumstance that no permutation of mitigating factors exists which would disable it from constitutionally sentencing the murderer to death. If the State would be constitutionally entitled, due to the nature of the offense, to sentence the murderer to death after going through such a limited version of the plurality's "balancing" approach, I see no constitutional reason why the "Cruel and Unusual Punishments" Clause precludes the State from doing so without engaging in that process.
28
The elements that differentiate this case from the Roberts case are easy to state. In both cases, the factors weighing on the defendant's side of the scale are constant. It is consideration of these factors alone that the opinion today apparently relies on for its holding. But this ignores the significantly different factors which weigh on the State's side of the scale. In all murder cases, and of course this one, the State has an interest in protecting its citizens from such ultimate attacks; this surely is at the core of the Lockean "social contract" idea. But other, and important, state interests exist where the victim was a peace officer performing his lawful duties. Policemen on the beat are exposed, in the service of society, to all the risks which the constant effort to prevent crime and apprehend criminals entails. Because these people are literally the foot soldiers of society's defense of ordered liberty, the State has an especial interest in their protection.
29
We are dealing here not merely with the State's determination as to whether particular conduct on the part of an individual should be punished, and in what manner, but also with what sanctions the State is entitled to bring into play to assure that there will be a police force to see that the criminal laws are enforced at all. It is no service to individual rights, or to individual liberty, to undermine what is surely the fundamental right and responsibility of any civilized government: the maintenance of order so that all may enjoy liberty and security. Learned Hand surely had it right when he observed:
30
"And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow." The Spirit of Liberty 190 (3d ed., 1960).
31
Policemen are both symbols and outriders of our ordered society, and they literally risk their lives in an effort to preserve it. To a degree unequaled in the ordinary first-degree murder presented in the Roberts case, the State therefore has an interest in making unmistakably clear that those who are convicted of deliberately killing police officers acting in the line of duty be forewarned that punishment, in the form of death, will be inexorable.2
32
This interest of the State, I think, entitled the Louisiana Legislature, in its considered judgment, to make the death penalty mandatory for those convicted of the intentional murder of a police officer. I had thought Justices STEWART, POWELL, and STEVENS had conceded that this response this need for a mandatory penalty could be permissible when, focusing on the crime, not the criminal, they wrote last Term in Gregg, 428 U.S., at 184, 96 S.Ct., at 2930, that
33
"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." (Emphasis added.)
34
I am quite unable to decipher why the Court today concludes that the intentional murder of a police officer is not one of these "certain crimes." The Court's answer appears to lie in its observation that "it is incorrect to suppose that no mitigating circumstances can exist when the victim is a police officer." Ante, at 636-637. The Court, however, has asked the wrong question. The question is not whether mitigating factors might exist, but, rather, whether whatever "mitigating" factors that might exist are of sufficient force so as to constitutionally require their consideration as counterweights to the admitted aggravating circumstance. Like Mr. Justice WHITE, I am unable to believe that a State is not entitled to determine that the premeditated murder of a peace officer is so heinous and intolerable a crime that no combination of mitigating factors can overcome the demonstration "that the criminal's character is such that he deserves death." 428 U.S., at 358, 96 S.Ct., at 3018.
35
As an example of a mitigating factor which, presumably, may "overcome" the aggravating factor inherent in the murder of a peace officer, the Court today gives us the astonishing suggestion of "the existence of circumstances which the offender reasonably believed provided a moral justification for his conduct . . . ." Ante, at 637. I cannot believe that States are constitutionally required to allow a defense, even at the sentencing stage, which depends on nothing more than the convict's moral belief that he was entitled to kill a peace officer in cold blood. John Wilkes Booth may well have thought he was morally justified in murdering Abraham Lincoln, whom, while fleeing from the stage of Ford's Theater, he characterized as a "tyrant"; I am appalled to believe that the Constitution would have required the Government to allow him to argue that as a "mitigating factor" before it could sentence him to death if he were found guilty. I am equally appalled that a State should be required to instruct a jury that such individual beliefs must or should be considered as a possible balancing factor against the admittedly proper aggravating factor.
36
The historical and legal content of the "Cruel and Unusual Punishments" Clause was stretched to the breaking point by the plurality's opinion in the Roberts case last Term. Today this judicially created superstructure, designed and erected more than 180 years after the Bill of Rights was adopted, is tortured beyond permissible limits of judicial review. There is nothing in the Constitution's prohibition against cruel and unusual punishment which disables a legislature from imposing a mandatory death sentence on a defendant convicted after a fair trial of deliberately murdering a police officer.
1
That section provides in part:
"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 (as) 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. 1975 La. Acts, No. 327.
2
"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 to the North Carolina statute. Even the other more narrowly drawn categories of first-degree murder in the Louisiana law (one of these being the wilful, deliberate, and premeditated homicide of a fireman or a police officer engaged in the performance of his lawful duties) 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." 428 U.S., at 333-334, 96 S.Ct., at 3006.
"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. 153, 186, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976)); Woodson v. North Carolina, (428 U.S. 280, 287 n. 7, 292-293, n. 25, 96 S.Ct. 2978, 2983 n. 7, 2985 n. 25, 49 L.Ed.2d 944 (1976))." Id., at 334 n. 9, 96 S.Ct., at 3006 n. 9 (emphasis added).
3
We recognize that the life of a police officer is a dangerous one. Statistics show that the number of police officers killed in the line of duty has more than doubled in the last 10 years. In 1966, 57 law enforcement officers were killed in the line of duty; in 1975, 129 were killed. Federal Bureau of Investigation, Crime in the United States 1975, Uniform Crime Reports 223 (1976).
4
See, e. g., the portion of the proposed standards of the Model Penal Code quoted in Gregg v. Georgia, 428 U.S. 153, 193-194 n. 44, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859 (1976).
5
We reserve again the question whether or in what circumstances mandatory death sentence statutes may be constitutionally applied to prisoners serving life sentences. See n. 2, supra, quoting 428 U.S., at 334 n. 9, 96 S.Ct., at 3006.
6
Indeed, our holding in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), that the Texas sentencing procedure was constitutionally adequate rested squarely on the fact that mitigating circumstances could be considered by the jury. In that case the joint opinion of Justices STEWART, POWELL, and STEVENS stated:
"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., at 303-305, 96 S.Ct., at 2991-2992), 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 (1976)). 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.
"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." Id., at 271-272, 96 S.Ct., at 2956 (footnote omitted).
7
In joining this opinion for the Court, Mr. Justice BRENNAN and Mr. Justice MARSHALL agree that the plurality opinion in Stanislaus Roberts, supra, controls this case, but adhere to their view that capital punishment is in all circumstances prohibited as cruel and unusual punishment by the Eighth and Fourteenth Amendments.
*
Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); 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); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); and Stanislaus Roberts, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).
1
In Woodson, the plurality noted that a public opinion poll "revealed that a 'substantial majority' of persons opposed mandatory capital punishment." 428 U.S., at 298-299, n. 34, 96 S.Ct., at 2989. It does not follow, even accepting that poll, that a "substantial majority" oppose mandatory capital punishment for the murderers of police officers. What meager statistics there are indicate that public opinion is at best pretty evenly divided on the subject. In a June 1973 Harris Survey, 41% of the people surveyed thought that "all" persons convicted of killing a policeman or a prison guard should get the death penalty, as opposed to 28% for the more general crime of first-degree murder. Vidmar & Ellsworth, Public Opinion and the Death Penalty, 26 Stan.L.Rev. 1245, 1252 (1974). A May 1973 poll in Minnesota revealed that 49% of the sample favored "automatic" capital punishment for " 'murder of a law enforcement officer.' " Id., at 1251. With such substantial public support, one would have thought that the determination as to whether a mandatory death penalty should exist was for the legislature, not for the judiciary through some newfound construction of the term "cruel and unusual punishments." Yet while the plurality observes that "(c)entral to the application of the Amendment is a determination of contemporary standards
regarding the infliction of punishment," 428 U.S., at 288, 96 S.Ct., at 2983, the opinion today makes absolutely no attempt to discuss "contemporary standards" with respect to the particular category now before us. The reason, of course, is not hard to deduce: the plurality's separation of "standards of decency" from "the dignity of man" indicates that, with respect to the latter, the plurality itself, and not society, is to be the arbiter.
2
Cf. 4 W. Blackstone, Commentaries *82:
"To resist the king's forces by defending a castle against them, is a levying of war . . .. But a tumult, with a view to pull down a particular house, or lay open a particular inclosure, amounts at most to a riot; this being no general defiance of public government."
As recently noted by Chief Justice Laskin of the Canadian Supreme Court, Miller and Cockriell v. The Queen, 70 D.L.R.3d 324, 337, (1976) 5 W.W.R. 711, 735 (1976), in discussing whether a mandatory death sentence constituted "cruel and unusual punishment" within the meaning of § 2(b ) of the Canadian Bill of Rights:
"I do not think, however, that it can be said that Parliament, in limiting the mandatory death penalty to the murder of policemen and prison guards, had only vengeance in view. There was obviously the consideration that persons in such special positions would have a sense of protection by reason of the grave penalty that would follow their murder . . .. It was open to Parliament to act on these additional considerations in limiting the mandatory death penalty as it did, and I am unable to say that they were not acted upon. On this view, I cannot find that there was no social purpose served by the mandatory death penalty so as to make it offensive to § 2(b )." (Concurring opinion.)
| 01
|
431 U.S. 595
97 S.Ct. 1987
52 L.Ed.2d 606
Roy SPLAWN, Petitioner,v.State of CALIFORNIA.
No. 76-143.
Argued March 23, 1977.
Decided June 6, 1977.
Syllabus
Petitioner, who was convicted of selling obscene film in violation of California law, contends that portions of the instructions to the jury violated his First and Fourteenth Amendment rights, claiming that the instructions (1) allowed the jury to convict him even though it might otherwise have found that the film was protected under the standards of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, because the instructions permitted the jury to consider motives of commercial exploitation on the part of persons in the chain of distribution other than petitioner, and (2) violated the prohibition against ex post facto laws, and the fair-warning requirement of Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894. The challenged instruction permitted the jury, in determining whether the film was utterly without redeeming social importance, to consider the circumstances of the sale and distribution, particularly whether such circumstances indicated that the film was being commercially exploited for the sake of its prurient appeal. Held:
1. The instruction violated no First Amendment rights of the petitioner. The circumstances of distribution of the material are relevant from the standpoint of whether public confrontation with potentially offensive aspects of the material is being forced and are "equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes." Ginzburg v. United States, 383 U.S. 463, 470, 86 S.Ct. 942, 947, 16 L.Ed.2d 31. See also Hamling v. United States, 418 U.S. 87, 130, 94 S.Ct. 2887, 2914, 41 L.Ed.2d 590. Pp. 598-599.
2. Though the section of the California Penal Code that authorized the challenged instruction was enacted after part of the conduct for which petitioner was convicted but prior to his trial, that section does not create any new substantive offense but merely declares what type of evidence may be received and considered by the jury in deciding whether the allegedly obscene material was "utterly without redeeming social importance." People v. Noroff, 67 Cal.2d 791, 63 Cal.Rptr. 575, 433 P.2d 479, relied on by petitioner in support of his ex post facto claim, did not disapprove of any use of evidence of pandering for its probative value on the obscenity issue but merely rejected the concept of pandering of nonobscene material as a separate crime under state law. Pp. 599-601.
3. There was no change in the interpretation of the elements of the substantive offense prohibited by California law and Bouie, supra, is therefore inapplicable. P. 601.
Affirmed.
Arthur Wells, Jr., San Francisco, Cal. for petitioner.
William D. Stein, San Francisco, Cal., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner Splawn was convicted in 1971 of the sale of two reels of obscene film, a misdemeanor violation of California Penal Code § 311.2 (West 1970). After the conviction was affirmed on appeal by the California First District Court of Appeal and the State Supreme Court denied review, this Court granted certiorari, vacated the judgment, and remanded for consideration in light of our decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), which had set forth the standards by which the constitutionality of § 311.2 was to be determined. After the State Supreme Court ruled that the statute satisfied the requirements articulated in Miller, see Bloom v. Municipal Court, 16 Cal.3d 71, 127 Cal.Rptr. 317, 545 P.2d 229 (1976), the Court of Appeal again affirmed the conviction and the California Supreme Court denied petitioner's motion for a hearing.
2
We again granted certiorari, 429 U.S. 997, 97 S.Ct. 522, 50 L.Ed.2d 607 (1976), to consider petitioner's assorted contentions that his conviction must be reversed because portions of the instructions given to the jury during his trial render his conviction violative of the First and Fourteenth Amendments. He claims that the instruction allowed the jury to convict him even though it might otherwise have found the material in question to have been protected under the Miller standards. He also contends that the same portions of the instructions render his conviction invalid by reason of the constitutional prohibition against ex post facto laws and the requirement of fair warning in the construction of a criminal statute enunciated in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). We consider these contentions in light of the fact that petitioner has abandoned any claim that the material for the selling of which he was convicted could not be found to be obscene consistently with the First and Fourteenth Amendments, and any claim that the California statute under which he was convicted does not satisfy the requirements articulated in Miller, supra.
3
As it was understood by the California Court of Appeal, petitioner's challenge is leveled against the following portion of the instructions:
4
"In determining the question of whether the allegedly obscene matter is utterly without redeeming social importance, you may consider the circumstances of sale and distribution, and particularly whether such circumstances indicate that the matter was being commercially exploited by the defendants for the sake of its prurient appeal. Such evidence is probative with respect to the nature of the matter and can justify the conclusion that the matter is utterly without redeeming social importance. The weight, if any, such evidence is entitled (to) is a matter for you, the Jury, to determine.
5
"Circumstances of production and dissemination are relevant to determining whether social importance claimed for material was in the circumstances pretense or reality. If you conclude that the purveyor's sole emphasis is in the sexually provocative aspect of the publication, that fact can justify the conclusion that the matter is utterly without redeeming social importance." App. 38-39.
6
(1) There is no doubt that as a matter of First Amendment obscenity law, evidence of pandering to prurient interests in the creation, promotion, or dissemination of material is relevant in determining whether the material is obscene. Hamling v. United States, 418 U.S. 87, 130, 94 S.Ct. 2887, 2914, 41 L.Ed.2d 590 (1974); Ginzburg v. United States, 383 U.S. 463, 470, 86 S.Ct. 942, 947, 16 L.Ed.2d 31 (1966). This is so partly because, as the Court has pointed out before, the fact that the accused made such an appeal has a bearing on the ultimate constitutional tests for obscenity:
7
"The deliberate representation of petitioners' publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes." Ibid.
8
Petitioner's interpretation of the challenged portion of the instructions in his case is that it permitted the jury to consider motives of commercial exploitation on the part of persons in the chain of distribution of the material other than himself. We upheld a similar instruction in Hamling, supra, however, wherein the jury was told that it could consider "whether the materials had been pandered, by looking to their '(m)anner of distribution, circumstances of production, sale, . . . advertising . . . (, and) editorial intent . . ..' This instruction was given with respect to both the Illustrated Report and the brochure which advertised it, both of which were at issue in the trial." 418 U.S., at 130, 94 S.Ct., at 2914.
9
(2, 3) Both Hamling and Ginzburg were prosecutions under federal obscenity statutes in federal courts, where our authority to review jury instructions is a good deal broader than is our power to upset state-court convictions by reason of instructions given during the course of a trial. See Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203. We can exercise the latter authority only if the instruction renders the subsequent conviction violative of the United States Constitution. Questions of what categories of evidence may be admissible and probative are otherwise for the courts of the States to decide. We think Hamling, supra, and Ginzburg, supra, rather clearly show that the instruction in question abridges no rights of petitioner under the First Amendment as made applicable to the States by the Fourteenth Amendment.
10
(4) But petitioner contends that even though this be so, the particular portions of the instructions of which he complains were given pursuant to a statute enacted after the conduct for which he was prosecuted. In his view, therefore, his conviction both violates the constitutional prohibition against ex post facto laws, see Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798), and failed to give him constitutionally fair warning of the prohibited conduct with which he was charged. Bouie v. Columbia, supra. We find these contentions to be without merit, and we reject them.
11
The section of the California Penal Code defining the substantive misdemeanor with which petitioner was convicted, § 311.2, was in full force and effect at all times relevant to petitioner's conduct. California Penal Code § 311(a) (West 1970), which authorized the above-quoted instructions, was enacted after part of the conduct for which he was convicted but prior to his trial. That section, however, does not create any new substantive offense, but merely declares what type of evidence may be received and considered in deciding whether the matter in question was "utterly without redeeming social importance."
12
Petitioner's ex post facto argument is based on his reading of an earlier decision of the Supreme Court of California, People v. Noroff, 67 Cal.2d 791, 63 Cal.Rptr. 575, 433 P.2d 479 (1967). His view is that under that case evidence such as was admitted here would not have been admissible at his trial on the substantive offense but for the enactment of § 311(a)(2). He claims that such a change in procedural rules governing his trial amounts to the enactment of an ex post facto law in violation of Art. I, § 9, cl. 3. The California Court of Appeal's opinion in this case rejected that contention, and since it is a contention which must in the last analysis turn on a proper reading of the California decisions, such a determination by the California Court of Appeal is entitled to great weight in evaluating petitioner's constitutional contentions.
13
The Court of Appeal, commenting on Noroff, said with respect to the California Supreme Court's decision in that case:
14
"The court did not, however, disapprove of any use of evidence of pandering for its probative value on the issue of whether the material was obscene. It merely rejected the concept of pandering of non-obscene material as a separate crime under the existing laws of California." App. to Pet. for Cert. ix.
15
We accept this conclusion of the California Court of Appeal, and therefore find it unnecessary to determine whether if § 311(a)(2) had permitted the introduction of evidence which would have been previously excluded under California law, petitioner would have had a tenable claim under the Ex Post Facto Clause of the United States Constitution.
16
Bouie v. City of Columbia, supra, holds that the elements of a statutory offense may not be so changed by judicial interpretation as to deny to accused defendants fair warning of the crime prohibited. No such change in the interpretation of the elements of the substantive offense prohibited by California law took place here, and petitioner may therefore derive no benefit from Bouie.
17
We thus find no merit in petitioner's claims based on First and Fourteenth Amendment protection of nonobscene matter, the constitutional prohibition against ex post facto laws, or Bouie v. City of Columbia. We have considered petitioner's other claims, which appear to be variations on the same theme, and likewise reject them. The judgment of the California Court of Appeal is
18
Affirmed.
19
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
20
The California courts, in response to our remand for reconsideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), reaffirmed petitioner's 1971 conviction of selling obscene films in violation of California Penal Code § 311.2 (West 1970). I would reverse the conviction. I adhere to my view expressed in Miller that this statute is "unconstitutionally overbroad, and therefore invalid on its face." 413 U.S., at 47, 93 S.Ct., at 2627 (Brennan, J., dissenting). See also Pendleton v. California, 423 U.S. 1068, 96 S.Ct. 850, 47 L.Ed.2d 79 (1976) (Brennan, J., dissenting from dismissal of appeal); Sandquist v. California, 423 U.S. 900, 901, 96 S.Ct. 204, 46 L.Ed.2d 133 (1975) (Brennan, J., dissenting from denial of certiorari); Tobalina v. California, 419 U.S. 926, 95 S.Ct. 201, 42 L.Ed.2d 159 (1974) (Brennan, J., dissenting from denial of certiorari); Kaplan v. California, 419 U.S. 915, 95 S.Ct. 194, 42 L.Ed.2d 154 (1974) (Brennan, J., dissenting from denial of certiorari); Blank v. California, 419 U.S. 913, 95 S.Ct. 193, 42 L.Ed.2d 153 (1974) (Brennan, J., dissenting from denial of certiorari).
21
Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
22
In my view the statute under which the petitioner was convicted is constitutionally invalid on its face. Accordingly, I have joined Mr. Justice BRENNAN's dissent.
23
But even if, as the Court believes, the statute itself is not invalid, Mr. Justice STEVENS has surely demonstrated that this petitioner was unconstitutionally convicted under it. On that basis, I also join the dissenting opinion of Mr. Justice STEVENS.
24
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL, join, dissenting.
25
Under the trial court's instructions, the jury may have determined that the films sold by the petitioner had some social significance and therefore were not in themselves obscene, but nevertheless found him guilty because they were advertised and sold as "sexually provocative."1 A conviction pursuant to such an instruction should not be allowed to stand.
26
Truthful statements which are neither misleading nor offensive are protected by the First Amendment even though made for a commercial purpose. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346. Nothing said on petitioner's behalf in connection with the marketing of these films was false, misleading, or even arguably offensive either to the person who bought them or to an average member of the community. The statements did make it clear that the films were "sexually provocative," but that is hardly a confession that they were obscene. And, if they were not otherwise obscene, I cannot understand how these films lost their protected status by being truthfully described.2
27
Even if the social importance of the films themselves is dubious, there is a definite social interest in permitting them to be accurately described. Only an accurate description can enable a potential viewer to decide whether or not he wants to see them. Signs which identify the "adult" character of a motion picture theater or a bookstore convey the message that sexually provocative entertainment is to be found within; under the jury instructions which the Court today finds acceptable, these signs may deprive otherwise nonobscene matter of its constitutional protection. Such signs, however, also provide a warning to those who find erotic materials offensive that they should shop elsewhere for other kinds of books, magazines, or entertainment. Under any sensible regulatory scheme, truthful description of subject matter that is pleasing to some and offensive to others ought to be encouraged, not punished.3
28
I would not send Mr. Splawn to jail for telling the truth about his shabby business.4
1
The relevant instruction is quoted by the Court, ante, at 597-598. I would emphasize this sentence: "If you conclude that the purveyor's sole emphasis is in the sexually provocative aspect of the publication, that fact can justify the conclusion that the matter is utterly without redeeming social importance."
2
Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, does not foreclose this analysis because it was decided before the Court extended First Amendment coverage to commercial speech. Ginzburg cannot survive Virginia Pharmacy. Ginzburg is based on the premise that advertising the character of the material may "catch the salaciously disposed." 383 U.S., at 472, 86 S.Ct., at 947 and "stimulat(e) the reader to accept them as prurient," id., at 470, 86 S.Ct., at 948. But Mr. Justice Blackmun's opinion for the Court in Virginia Pharmacy makes it clear:
"There is . . . an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. . . . It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us." 425 U.S., at 770, 96 S.Ct., at 1829. See also Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977). Indeed, the case for First Amendment protection in advertising is stronger in this case than in Linmark or Virginia Pharmacy. For to ban advertising of a book or film is to suppress the book or film itself.
Mr. Justice BRENNAN does not join this footnote. Because he agrees that the California Legislature's retroactive adoption of Ginzburg violates the Ex Post Facto Clause, n. 4, infra, we need not in his view decide the question whether Ginzburg survives Virginia Pharmacy.
3
It is ironic that in upholding obscenity laws this Court has stressed the State's "legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles." Miller v. California, 413 U.S. 15, 18-19, 93 S.Ct. 2607, 2612, 37 L.Ed.2d 419 (footnote omitted).
4
I must also record my dissent from the Court's disposition of petitioner's ex post facto argument.
In People v. Noroff, 58 Cal.Rptr. 172 (1967), the California Court of Appeal reversed a trial judge who had determined the obscenity issue before trial solely on the basis of the materials themselves. Relying on Ginzburg, the Court of Appeal held that the prosecution should have been allowed to present evidence of pandering: "although the ultimate constitutional fact in issue remains a question of law to be decided by the court, it will be a rare case . . . when a trial court may properly undertake to determine this issue prior to trial by a mere examination of the material itself unaided by expert testimony or evidence relating to the conduct of defendant in connection with the material." 58 Cal.Rptr., at 177.
The California Supreme Court reversed, and rejected the argument "that the trial court should have permitted the prosecution to go to the jury with evidence bearing upon the defendant's 'pandering' of the magazine in question." 67 Cal.2d 791, 793, 63 Cal.Rptr. 575, 576, 433 P.2d 479, 480 (1967). The court also expressly rejected an argument that an earlier California case had adopted "a 'pandering' concept similar to that elaborated in Ginzburg in the context of the federal obscenity statute." Id., at 793 n. 4, 63 Cal.Rptr., at 576 n. 4, 433 P.2d, at 480 n. 4.
After petitioner's offense, the California Legislature retroactively adopted Ginzburg by statute. In my view, petitioner had the right to rely on the Noroff decision, and to believe that he was entitled to truthfully advertise otherwise nonobscene material. The Ex Post Facto Clause "reflect(s) the strong belief of the Framers of the Constitution that men should not have to act at their peril, fearing always that the State might change its mind and alter the legal consequences of their past act so as to take away their lives, their liberty or their property." El Paso v. Simmons, 379 U.S. 497, 522, 85 S.Ct. 577, 591, 13 L.Ed.2d 446 (Black, J., dissenting).
| 23
|
431 U.S. 563
97 S.Ct. 1963
52 L.Ed.2d 582
Richard A. SCARBOROUGH, Petitioner,v.UNITED STATES.
No. 75-1344.
Argued March 2, 1977.
Decided June 6, 1977.
Syllabus
In a prosecution for possession of a firearm in violation of the provision of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. App. § 1202(a), making it a crime for a convicted felon to possess "in commerce or affecting commerce" any firearm, proof that the possessed firearm previously traveled at some time in interstate commerce held sufficient to satisfy the statutorily required nexus between possession and commerce. This is so, where, as in this case, the firearm in question traveled in interstate commerce before the accused became a convicted felon; the nexus need not be "contemporaneous" with the possession. Both the text and legislative history of the statute show a congressional intent to require no more than the minimal nexus that the firearm have been, at some time, in interstate commerce and to outlaw possession broadly, with little concern for when the nexus with commerce occurred. Pp. 567-577.
4 Cir., 539 F.2d 331, affirmed.
On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit.
Philip J. Hirschkop, Alexandria, Va., for petitioner.
Richard A. Allen, Washington, D. C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Petitioner was convicted of possessing a firearm in violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 (Omnibus Crime Control Act), 18 U.S.C.App. §§ 1201-1203. The statute provides, in pertinent part:
2
"Any person who
3
"(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony . . .
4
"and who receives, possesses, or transports in commerce or affecting commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both." 18 U.S.C.App. § 1202(a).1
5
The issue in this case is whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce.
6
* In 1972 petitioner pleaded guilty in the Circuit Court of Fairfax County, Va., to the felony of possession of narcotics with intent to distribute. A year later, in August 1973, law enforcement officials, in the execution of a search warrant for narcotics, seized four firearms from petitioner's bedroom. Petitioner was subsequently charged with both receipt and possession of the four firearms in violation of 18 U.S.C. App. § 1202(a)(1).
7
In a jury trial in the Eastern District of Virginia, the Government offered evidence to show that all of the seized weapons had traveled in interstate commerce. All the dates established for such interstate travel were prior to the date petitioner became a convicted felon.2 The Government made no attempt to prove that the petitioner acquired these weapons after his conviction.3 Holding such proof necessary for a receipt conviction, the judge, at the close of the Government's case, granted petitioner's motion for a judgment of acquittal on that part of the indictment charging receipt.
8
Petitioner's defense to the possession charge was twofold. As a matter of fact, he contended that by the time of his conviction he no longer possessed the firearms. His claim was that, to avoid violating this statute, he had transferred these guns to his wife prior to pleading guilty to the narcotics felony. Secondly, he argued that, as a matter of law, proof that the guns had at some time traveled in interstate commerce did not provide an adequate nexus between the possession and commerce. In furtherance of this defense, petitioner requested that the jury be instructed as follows:
9
"In order for the defendant to be found guilty of the crime with which he is charged, it is incumbent upon the Government to demonstrate a nexus between the 'possession' of the firearms and interstate commerce. For example, a person 'possesses' in commerce or affecting commerce if at the time of the offense the firearms were moving interstate or on an interstate facility, or if the 'possession' affected commerce. It is not enough that the Government merely show that the firearms at some time had travelled in interstate commerce. . . ." App. 12-13.
10
The judge rejected this instruction. Instead he informed the jury:
11
"The government may meet its burden of proving a connection between commerce and the possession of a firearm by a convicted felon if it is demonstrated that the firearm possessed by a convicted felon had previously travelled in interstate commerce. . . .
12
"It is not necessary that the government prove that the defendant purchased the gun in some state other than that where he was found with it or that he carried it across the state line, nor must the government prove who did purchase the gun." Id., at 14.
13
Petitioner was found guilty and he appealed. The Court of Appeals for the Fourth Circuit affirmed. 539 F.2d 331. It held that the interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm petitioner possessed had previously traveled in interstate commerce. In view of the split among the circuits on this issue,4 we granted certiorari. 429 U.S. 815, 97 S.Ct. 56, 50 L.Ed.2d 74 (1976).5 We affirm.
II
14
(1, 2) Our first encounter with Title VII of the Omnibus Crime Control Act came in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). There we had to decide whether the statutory phrase "in commerce or affecting commerce" in § 1202(a) applied to "possesses" and "receives" as well as to "transports." We noted that the statute was not a model of clarity. On the one hand, we found "significant support" in the legislative history for the contention that the statute "reaches the mere possession of guns without any showing of an interstate commerce nexus" in individual cases. 404 U.S., at 345-346, 92 S.Ct., at 521. On the other hand, we could not ignore Congress' inserting the phrase "in commerce or affecting commerce" in the statute. Id., at 345, 92 S.Ct., at 521. The phrase clearly modified "transport" and we could find no sensible explanation for requiring a nexus only for transport. Id., at 340, 92 S.Ct., at 519. Faced with this ambiguity,6 the Court adopted the narrower reading that the phrase modified all three offenses. We found this result dictated by two principles of statutory interpretation: First, that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity," Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), and second, that "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance," Bass, supra, 404 U.S., at 349, 92 S.Ct., at 523. Since "(a)bsent proof of some interstate commerce nexus in each case § 1202(a) dramatically intrudes upon traditional state criminal jurisdiction," 404 U.S., at 350, 92 S.Ct., at 524, we were unwilling to conclude, without a "clearer statement of intention," ibid., that Congress meant to dispense entirely with a nexus requirement in individual cases.
15
It was unnecessary in Bass for us to decide what would constitute an adequate nexus with commerce as the Government had made no attempt to show any nexus at all. While we did suggest some possibilities,7 the present case presents the first opportunity to focus on the question with the benefit of full briefing and argument.
16
The Government's position is that to establish a nexus with interstate commerce it need prove only that the firearm possessed by the convicted felon traveled at some time in interstate commerce. The petitioner contends, however, that the nexus must be "contemporaneous" with the possession, that the statute proscribes "only crimes with a present connection to commerce." Brief for Petitioner 9. He suggests that at the time of the offense the possessor must be engaging in commerce or must be carrying the gun at an interstate facility. Tr. of Oral Arg. 11. At oral argument he suggested an alternative theory that one can be convicted for possession without any proof of a present connection with commerce so long as the firearm was acquired after conviction. Id., at 15.
17
In our effort to resolve the dispute, we turn first to the text of the statute. Petitioner contends that the meaning can be readily determined from the face of the statute, at least when it is contrasted with Title IV of the Omnibus Crime Control Act, another title dealing with gun control.8 He points to one section of Title IV, 18 U.S.C. § 922(h), arguing, in reliance on our decision in Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976), that this section shows how Congress can, if it chooses, specify an offense based on firearms that have previously traveled in commerce. In § 922(h), Congress employed the present perfect tense, as it prohibited a convicted felon from receiving a firearm "which has been shipped or transported in interstate or foreign commerce." This choice of tense led us to conclude in Barrett that Congress clearly "denot(ed) an act that has been completed." 423 U.S., at 216, 96 S.Ct., at 501. Thus, petitioner argues, since Congress knows how to specify completed transactions, its failure to use that language in the present statute must mean that it wanted to reach only ongoing transactions.
18
The essential difficulty with this argument is that it is not very meaningful to compare Title VII with Title IV. See Bass, 404 U.S., at 344, 92 S.Ct., at 520. Title VII was a last-minute amendment to the Omnibus Crime Control Act enacted hastily with little discussion and no hearings.9 The statute, as we noted in Bass, is not the product of model legislative deliberation or draftsmanship. Id., at 339, 344, 92 S.Ct., at 518, 520. Title IV, on the other hand is a carefully constructed package of gun control legislation. It is obvious that the tenses used throughout Title IV were chosen with care. For example, in addition to the prohibition in § 922(h) on receipt by convicted felons, Congress also made it illegal in § 922(g) for such person to "ship or transport any firearm or ammunition in interstate or foreign commerce." In § 922(j), Congress made it unlawful for "any person to receive, conceal, store, barter, sell or dispose of, any stolen firearm . . . , which is moving as, which is part of or which constitutes, interstate or foreign commerce." And § 922 (k) makes it illegal for "any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had (its) serial number removed, obliterated or altered." In view of such fine nuances in the tenses employed in the statute, the Court could easily conclude in Barrett that "Congress knew the significance and meaning of the language it employed." 423 U.S., at 217, 96 S.Ct., at 501. The language it chose was "without ambiguity." Id., at 216, 96 S.Ct., at 501. "Had Congress intended to confine § 922(h) to direct interstate receipt, it would have so provided, just as it did in other sections of (Title IV)." Id., at 217, 96 S.Ct., at 501.
19
In the present case, by contrast, Congress' choice of language was ambiguous at best. While it is true that Congress did not choose the precise language used in § 922(h) to indicate that a present nexus with commerce is not required, neither did it use the language of § 922 (j) to indicate that the gun must have a contemporaneous connection with commerce at the time of the offense. Thus, while petitioner is correct in noting that Congress has the skills to be precise, the fact that it did not employ those skills here helps us not at all.
20
While Congress' choice of tenses is not very revealing, its findings and its inclusion of the phrase "affecting commerce" are somewhat more helpful. In the findings at the beginning of Title VII, Congress expressly declared that "the receipt, possession, or transportation of a firearm by felons . . . constitutes . . . a burden on commerce or threat affecting the free flow of commerce," 18 U.S.C.App. § 1201(1).10 It then implemented those findings by prohibiting possessions "in commerce and affecting commerce." As we have previously observed, Congress is aware of the "distinction between legislation limited to activities 'in commerce' and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce." United States v. American Bldg. Maintenance Industries, 422 U.S. 271, 280, 95 S.Ct. 2150, 2156, 45 L.Ed.2d 177 (1975); see also NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 313, 9 L.Ed.2d 279 (1963). Indeed, that awareness was explicitly demonstrated here. In arguing that Congress could, consistent with the Constitution, "outlaw the mere possession of weapons," Senator Long, in introducing Title VII, pointed to the fact that "many of the items and transactions reached by the broad swath of the Civil Rights Act of 1964 were reached by virtue of the power of Congress to regulate matters affecting commerce, not just to regulate interstate commerce itself". 114 Cong.Rec. 13868 (1968). He advised a similar reliance on the power to regulate matters affecting commerce and urged that "Congress simply (find) that the possession of these weapons by the wrong kind of people is either a burden on commerce or a threat that affects the free flow of commerce." Id., at 13869. While in Bass we noted that we could not be sure that Congress meant to do away entirely with a nexus requirement, it does seem apparent that in implementing these findings by prohibiting both possessions in commerce and those affecting commerce, Congress must have meant more than to outlaw simply those possessions that occur in commerce or in interstate facilities. And we see no basis for contending that a weapon acquired after a conviction affects commerce differently from one acquired before and retained.
21
The legislative history in its entirety, while brief, further supports the view that Congress sought to rule broadly to keep guns out of the hands of those who have demonstrated that "they may not be trusted to possess a firearm without becoming a threat to society." Id., at 14773. There is simply no indication of any concern with either the movement of the gun or the possessor or with the time of acquisition.
22
In introducing the amendment, Senator Long stated:
23
"I have prepared an amendment which I will offer at an appropriate time, simply setting forth the fact that anybody who has been convicted of a felony . . . is not permitted to possess a firearm . . ..
24
"It might be well to analyze, for a moment, the logic involved. When a man has been convicted of a felony, unless as this bill sets forth he has been expressly pardoned by the President and the pardon states that the person is to be permitted to possess firearms in the future, that man would have no right to possess firearms. He would be punished criminally if he is found in possession of them.
25
"It seems to me that this simply strikes at the possession of firearms by the wrong kind of people. It avoids the problem of imposing on an honest hardware store owner the burden of keeping a lot of records and trying to keep up with the ultimate disposition of weapons sold. It places the burden and the punishment on the kind of people who have no business possessing firearms in the event they come into possession of them." Id., at 13868-13869.
26
The purpose of the amendment was to complement Title IV. Id., at 14774; see also id., at 16286. Senator Long noted:
27
"Of all the gun bills that have been suggested, debated, discussed and considered, none except this Title VII attempts to bar possession of a firearm from persons whose prior behaviors have established their violent tendencies. . . .
28
". . . Under Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of (sic ) the right to possess a firearm in the future . . . .
29
"Despite all that has been said about the need for controlling firearms in this Country, no other amendment heretofore offered would get at the Oswalds or the Galts. They are the types of people at which Title VII is aimed." Id., at 14773-14774.
30
He proposed this amendment to remedy what he thought was an erroneous conception of the drafters of Title IV that there was "a constitutional doubt that the Federal Government could outlaw the mere possession of weapons." Id., at 13868.
31
The intent to outlaw possession without regard to movement and to apply it to a case such as petitioner's could not have been more clearly revealed than in a colloquy between Senators Long and McClellan:
32
"Mr. McClellan. I have not had an opportunity to study the amendment. . . . The thought that occurred to me, as the Senator explained it, is that if a man had been in the penitentiary, had been a felon, and had been pardoned, without any condition in his pardon to which the able Senator referred, granting him the right to bear arms, could that man own a shotgun for the purpose of hunting?
33
"Mr. Long of Louisiana. No, he could not. He could own it, but he could not possess it.
34
"Mr. McClellan. I beg the Senator's pardon?
35
"Mr. Long of Louisiana. This amendment does not seek to do anything about who owns a firearm. He could not carry it around; he could not have it.
36
"Mr. McClellan. Could he have it in his home?
37
"Mr. Long of Louisiana. No, he could not." Id., at 14744 (emphasis added).
38
It was after this colloquy that Senator McClellan suggested that the amendment be taken to conference for "further thought." Ibid. While that appeared to be its destination, the House, after Senate passage of the bill, defeated a motion to go to conference and adopted the entire Senate bill, including Title VII, without alteration. Id., at 16077-16078, 16299-16300. Title VII thus became law without modification.
39
It seems apparent from the foregoing that the purpose of Title VII was to proscribe mere possession but that there was some concern about the constitutionality of such a statute. It was that observed ambivalence that made us unwilling in Bass to find the clear intent necessary to conclude that Congress meant to dispense with a nexus requirement entirely. However, we see no indication that Congress intended to require any more than the minimal nexus that the firearm have been, at some time, in interstate commerce.11 In particular, we find no support for petitioner's theories.
40
Initially, we note our difficulty in fully comprehending petitioner's conception of a nexus with commerce. In his view, if an individual purchases a gun before his conviction, the fact that the gun once traveled in commerce does not provide an adequate nexus. It is necessary, in addition, that the person also carry it in an interstate facility. If, however, one purchases the same gun from the same dealer one day after the conviction as opposed to one day before, somehow the nexus magically appears, regardless of whether the purchaser carries the gun in any particular place. Such an interpretation strains credulity. We find no evidence in either the language or the legislative history for such a construction.12
41
More significantly, these theories create serious loopholes in the congressional plan to "make it unlawful for a firearm . . . to be in the possession of a convicted felon." 114 Cong.Rec. 14773 (1968). A person who obtained a firearm prior to his conviction can retain it forever so long as he is not caught with it in an interstate facility. Indeed, petitioner's interpretation allows an individual to go out in the period between his arrest and conviction and purchase and stockpile weapons with impunity. In addition, petitioner's theories would significantly impede enforcement efforts. Those who do acquire guns after their conviction obviously do so surreptitiously and, as petitioner concedes, Tr. of Oral Arg. 19, it is very difficult as a practical matter to prove that such possession began after the possessor's felony conviction.
42
Petitioner responds that the Government's reading of the statute fails to give effect to all three terms of the statute receive, possess, transport. He argues that someone guilty of receipt or transport will necessarily be guilty of possession and that, therefore, there was no need to include the other two offenses in the statute. While this contention is not frivolous,13 the fact is that petitioner's theory is similarly vulnerable. By his proposed definitions, there are essentially only two crimes receipt and transport. The possessor who acquires the weapon after his conviction is guilty of receipt and the one who is carrying the gun in commerce or at an interstate facility presumably is guilty of transporting.14 Thus, the definitions offered by both sides fail to give real substance to all three terms. The difference, however, is that the Government's definition captures the essence of Congress' intent, striking at the possession of weapons by people "who have no business possessing (them)." 114 Cong.Rec. 13869 (1968). Petitioner's version, on the other hand, fails completely to fulfill the congressional purpose. It virtually eliminates the one offense on which Congress focused in enacting the law.
43
(3) Finally, petitioner seeks to invoke the two principles of statutory construction relied on in Bass lenity in construing criminal statutes and caution where the federal-state balance is implicated. Petitioner, however, overlooks the fact that we did not turn to these guides in Bass until we had concluded that "(a)fter 'seizing every thing from which aid can be derived,' . . . we are left with an ambiguous statute." 404 U.S., at 347, 92 S.Ct., at 522. The principles are applicable only when we are uncertain about the statute's meaning and are not to be used "in complete disregard of the purpose of the legislature." United States v. Bramblett, 348 U.S. 503, 510, 75 S.Ct. 504, 508, 99 L.Ed. 594 (1955). Here, the intent of Congress is clear. We do not face the conflicting pull between the text and the history that confronted us in Bass. In this case, the history is unambiguous and the text consistent with it. Congress sought to reach possessions broadly, with little concern for when the nexus with commerce occurred. Indeed, it was a close question in Bass whether § 1202(a) even required proof of any nexus at all in individual cases. The only reason we concluded it did was because it was not "plainly and unmistakably" clear that it did not. 404 U.S., at 348, 92 S.Ct., at 523. But there is no question that Congress intended no more than a minimal nexus requirement.
44
Since the District Court and the Court of Appeals employed the proper standard, we affirm the conviction of petitioner.
45
It is so ordered.
46
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
47
Mr. Justice STEWART, dissenting.
48
So far as the record reflects, the petitioner in this case acquired the four weapons in question before he was convicted of a felony in August 1972. Until that time, his possession of the guns was entirely legal under federal law. Under the Court's construction of 18 U.S.C. App. § 1202(a)(1), however, the petitioner was automatically guilty of a serious federal criminal offense at the moment he was convicted in the state felony case. This result is in my view inconsistent with the time-honored rule of lenity in construing federal criminal statutes. See, e. g., Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493; Ladner v. United States, 358 U.S. 169, 177-178, 79 S.Ct. 209, 213-214, 3 L.Ed.2d 199; Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905; United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222, 73 S.Ct. 227, 229-230, 97 L.Ed. 260. I would hold that § 1202(a)(1) does not come into play unless and until a person first comes into possession of a firearm after he is convicted of a felony.
49
The language of § 1202(a)(1) does not compel the construction that the Court adopts. The statute covers "(a)ny person who . . . has been convicted . . . of a felony . . . and who receives, possesses, or transports . . . any firearm . . . ." Plainly the acts of receiving and transporting are prohibited only if they occur after the defendant's conviction. The language does not indicate, however, whether the illegal possession must also first begin after conviction, or whether a prior possession becomes illegal at the moment the possessor is adjudged guilty of a felony. And, as the Court observes, ante, at 576-577, any reading of the statute makes one or another part of it redundant. If § 1202(a) makes criminal any postconviction possession of a gun by a convicted felon, then there will almost never be a situation where the Government would need to rely on the prohibition against receipt of the gun, for in most cases receipt would result in possession, and the latter is generally easier to prove. On the other hand, if the prohibition against possession refers to a possession that begins only after a felony conviction, the Government presumably could proceed on a receipt charge in such cases, without relying on the possession offense (or vice versa).
50
The legislative history does not provide much help. There are statements suggesting that Congress meant to proscribe any possession of a firearm by a convicted felon. Other statements, however, intimate that the statute's purpose was to prevent a convicted felon from coming into possession of a weapon after his conviction. For instance, Senator Long, the drafter and sponsor of § 1202, stated that the statute "places the burden and the punishment on the kind of people who have no business possessing firearms in the event they come into possession of them." 114 Cong.Rec. 13869 (1968). Later he added that § 1202(a) "would deny every assassin, murderer, thief and burglar . . . the right to possess a firearm in the future . . . ." 114 Cong.Rec. 14773.
51
In short, I disagree with the Court that the scope of § 1202(a) is so crystal clear that there is no room for the operation of the rule of lenity. In my view, we are under no mandate to construe this statute so that a person in lawful possession of a firearm, and presumed to be innocent of a felony until proved guilty, must upon his conviction of a felony also be automatically and instantly guilty of a wholly different serious criminal offense.1 The statute could equally be read to apply only when a person first comes into possession of a firearm after his felony conviction.2 That being so, I would choose the latter alternative, for "it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication." United States v. Universal C. I. T. Credit Corp., supra, at 222, 73 S.Ct., at 229.
52
Since the petitioner in this case came into possession of the firearms before he was convicted of any felony, I would hold that he did not violate § 1202(a) (1). Accordingly, I respectfully dissent from the opinion and judgment of the Court.
1
Section 1202(a) reads in full:
"(a) Any person who
"(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
"(2) has been discharged from the Armed Forces under dishonorable conditions, or
"(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or
"(4) having been a citizen of the United States has renounced his citizenship, or
"(5) being an alien is illegally or unlawfully in the United States,
"who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both."
2
The Government's evidence showed that the Colt revolver was shipped from Connecticut to North Carolina in 1969 and entered Virginia by unknown means, App. 6-7; that the Universal Enforcer came from Florida to Virginia in 1969 and was purchased by petitioner in 1970, id., at 7-8; that the M-1 carbine rifle was sent to Maryland from Illinois in 1966, coming to Virginia by unknown means, id., at 8-9; and that the St. Etienne Ordinance revolver was manufactured in France in the 19th century and was somehow later brought into Virginia, id., at 9-10.
3
The Government showed that petitioner bought the Enforcer in 1970. The only evidence regarding acquisition of the other weapons came from petitioner. He claimed he purchased the Colt revolver in 1970, Tr. 88, and the M-1 rifle in 1968, id., at 108. The French revolver, he claimed, was left in his house shortly before the state conviction but he was not sure by whom. Id., at 88, 105.
4
Agreeing with the Fourth Circuit that proof of previous interstate movement of the firearm provides a sufficient commerce nexus for the possession offense are the Sixth Circuit, United States v. Jones, 533 F.2d 1387 (1976) and the Tenth Circuit, United States v. Bumphus, 508 F.2d 1405 (1975) (dictum). Three other Circuits have indicated that such proof is adequate for a receipt offense but that the possession offense requires that the possession have a contemporaneous nexus with commerce. United States v. Ressler, 536 F.2d 208 (CA7 1976); United States v. Bell, 524 F.2d 202 (CA2 1975); United States v. Steeves, 525 F.2d 33 (CA8 1975) (dictum). The Ninth Circuit apparently has an intra-Circuit conflict. Compare United States v. Malone, 538 F.2d 250 (1976) and United States v. Cassity, 509 F.2d 682 (1974), with United States v. Burns, 529 F.2d 114 (CA9 1975).
5
The grant of the petition was limited to the question "(w)hether the Court erred in holding that a conviction under 18 U.S.C.App. § 1202(a) for possession of a firearm in commerce or affecting commerce by a convicted felon is sustainable merely upon a showing that the possessed firearm has previously at any time however remote travelled in interstate commerce." Petitioner's Fourth Amendment claim was excluded.
6
As one commentator described our dilemma: "(T)he legislative history looked one way and the logic and structure of the statute another, while the language was not clear." Stern, The Commerce Clause Revisited The Federalization of Intrastate Crime, 15 Ariz.L.Rev. 271, 281 (1973).
7
See n. 11, infra.
8
The provisions of Title IV of the Omnibus Crime Control Act were re-enacted later that year without relevant change in the Gun Control Act of 1968, 82 Stat. 1213. For convenience, those provisions are referred to here collectively as Title IV.
9
Senator Long introduced it on the floor of the Senate on May 17, 1968. About a week later he explained his amendment again; there was brief debate; a vote was called; and the amendment was agreed to without having been referred to any committee. Accordingly, there were no legislative hearings and no committee reports. The amendment received only passing mention in the House discussion of the bill and never received committee consideration there either.
10
Title 18 U.S.C.App. § 1201 reads in its entirety:
"Congressional findings and declaration.
"The Congress hereby finds and declares that the receipt, possession, or transportation of a firearm by felons, veterans who are discharged under dishonorable conditions, mental incompetents, aliens who are illegally in the country, and former citizens who have renounced their citizenship, constitutes
"(1) a burden on commerce or threat affecting the free flow of commerce,
"(2) a threat to the safety of the President of the United States and Vice President of the United States,
"(3) an impediment or a threat to the exercise of free speech and the free exercise of a religion guaranteed by the first amendment to the Constitution of the United States, and
"(4) a threat to the continued and effective operation of the Government of the United States and of the government of each State guaranteed by article IV of the Constitution."
11
In Bass, the Court suggested that there might be a distinction between receipt and possession and that possession might require a stricter nexus with commerce. While such a requirement would make sense, see United States v. Bell, 524 F.2d, at 209, further consideration has persuaded us that that was not the choice Congress made. Congress was not particularly concerned with the impact on commerce except as a means to insure the constitutionality of Title VII. State gun control laws were found "inadequate to bar possession of firearms from those most likely to use them for unlawful purposes" and Congress sought to buttress the States' efforts, 114 Cong.Rec. 14774 (1968). All indications are that Congress meant to reach possessions broadly.
12
The argument sounds more like an effort to define possession, but the only issue before us is the nexus requirement. Petitioner has raised no objections to the trial court's definition of possession. Even as a proposed definition of possession, however, there is no support for it in the history or text. While Senator Long used the word "acquire" a few times in discussing the amendment, it is clear his concern was with the dangers of certain people having guns, not with when they obtained them. Furthermore, his use of the term "acquire" is better explained as a synonym for "receive" than for "possess." See United States v. Kelly, 519 F.2d 251, 253 n. 3 (CA8 1975).
13
We note, however, that it is also arguable that one could receive and perhaps transport a weapon without necessarily exercising dominion and control over it.
14
Petitioner suggests that a possessor's simply waiting in an interstate facility is not transporting. Even if that is true, we find it inconceivable, in view of the legislative history, that Congress intended the possession offense to have so limited a scope.
1
Under this construction, for example, a bookkeeper who owns a hunting rifle and who later commits embezzlement will, immediately upon his embezzlement conviction, also be guilty of violating § 1202(a). At oral argument the Government agreed that such a person should have a reasonable time to relinquish possession without being automatically in violation of the statute, and suggested that prosecutorial discretion would take care of the problem. Proper construction of a criminal statute, however, cannot depend upon the good will of those who must enforce it.
2
Contrary to the Court's suggestion, this reading would not allow a person "to go out in the period between his arrest and conviction and purchase and stockpile weapons with impunity." Ante, at 576. Title 18 U.S.C. § 922(h) makes it unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to receive any firearm or ammunition that has been shipped or transported in interstate or foreign commerce.
| 01
|
431 U.S. 606
97 S.Ct. 1972
52 L.Ed.2d 617
UNITED STATES, Petitioner,v.Charles W. RAMSEY and James W. Kelly.
No. 76-167.
Argued March 30, 1977.
Decided June 6, 1977.
Syllabus
Title 19 U.S.C. § 482 and implementing postal regulations authorize customs officials to inspect incoming international mail when they have a "reasonable cause to suspect" that the mail contains illegally imported merchandise, although the regulations prohibit the reading of correspondence absent a search warrant. Acting pursuant to the statute and regulations, a customs inspector, based on the facts that certain incoming letter-sized airmail envelopes were from Thailand, a known source of narcotics, and were bulky and much heavier than a normal airmail letter, opened the envelopes for inspection at the General Post Office in New York City, considered a "border" for border-search purposes, and ultimately the envelopes were found to contain heroin. Respondents were subsequently indicted for and convicted of narcotics offenses, the District Court having denied their motion to suppress the heroin. The Court of Appeals reversed, holding that the border-search exception to the Fourth Amendment's warrant requirement applicable to persons, baggage, and mailed packages did not apply to the opening of international mail, and that the Constitution requires that before such mail is opened a showing of probable cause must be made and a warrant obtained. Held :
1. Under the circumstances, the customs inspector had "reasonable cause to suspect" that there was merchandise or contraband in the envelopes, and therefore the search was plainly authorized by the statute. Pp. 611-616.
2. The Fourth Amendment does not interdict the actions taken by the inspector in opening and searching the envelopes. Pp. 616-625.
(a) Border searches without probable cause and without a warrant are nonetheless "reasonable" within the meaning of the Fourth Amendment. Pp. 616-619.
(b) The inclusion of international mail within the border-search exception does not represent any "extension" of that exception. The exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country, and no different constitutional standards should apply simply because the envelopes were mailed, not carried the critical fact being that the envelopes cross the border and enter the country, not that they are brought in by one mode of transportation rather than another. It is their entry into the country from without it that makes a resulting search "reasonable." Pp. 619-621.
(c) The border-search exception is not based on the doctrine of "exigent circumstances," but is a longstanding, historically recognized exception to the Fourth Amendment's general principle that a warrant be obtained. Pp. 621-622.
(d) The opening of international mail under the guidelines of the statute only when the customs official has reason to believe the mail contains other than correspondence, while the reading of any correspondence inside the envelopes is forbidden by the regulations, does not impermissibly chill the exercise of free speech under the First Amendment, and any "chill" that might exist under such circumstances is not only "minimal" but is also wholly subjective. Pp. 623-624.
176 U.S.App.D.C. 67, 538 F.2d 415, reversed.
Kenneth S. Geller, Washington, D. C., for the petitioner.
Allan M. Palmer, Washington, D. C., for the respondent Charles W. Ramsey.
Irving R. M. Panzer, Washington, D. C., for the respondent James W. Kelly.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Customs officials, acting with "reasonable cause to suspect" a violation of customs laws, opened for inspection incoming international letter-class mail without first obtaining a search warrant. A divided Court of Appeals for the District of Columbia Circuit held contrary to every other Court of Appeals which has considered the matter,1 that the Fourth Amendment forbade the opening of such mail without probable cause and a search warrant. 176 U.S.App.D.C. 67, 538 F.2d 415. We granted the Government's petition for certiorari to resolve this Circuit conflict. 429 U.S. 815, 97 S.Ct. 56, 50 L.Ed.2d 75. We now reverse.
2
* Charles W. Ramsey and James W. Kelly jointly commenced a heroin-by-mail enterprise in the Washington, D. C., area. The process involved their procuring of heroin, which was mailed in letters from Bangkok, Thailand, and sent to various locations in the District of Columbia area for collection. Two of their suppliers, Sylvia Bailey and William Ward, who were located in West Germany, were engaged in international narcotics trafficking during the latter part of 1973 and the early part of 1974. West German agents, pursuant to court-authorized electronic surveillance, intercepted several trans-Atlantic conversations between Bailey and Ramsey during which their narcotics operation was discussed. By late January 1974, Bailey and Ward had gone to Thailand. Thai officials, alerted to their presence by West German authorities, placed them under surveillance. Ward was observed mailing letter-sized envelopes in six different mail boxes; five of these envelopes were recovered; and one of the addresses in Washington, D. C., was later linked to respondents. Bailey and Ward were arrested by Thai officials on February 2, 1974; among the items seized were eleven heroin-filed envelopes addressed to the Washington, D. C., area, and later connected with respondents.
3
Two days after this arrest of Bailey and Ward, Inspector George Kallnischkies, a United States customs officer in New York City, without any knowledge of the foregoing events, inspecting a sack of incoming international mail from Thailand, spotted eight envelopes that were bulky and which he believed might contain merchandise.2 The envelopes, all of which appeared to him to have been typed on the same typewriter, were addressed to four different locations in the Washington, D. C., area. Inspector Kallnischkies, based on the fact that the letters were from Thailand, a known source of narcotics, and were "rather bulky," suspected that the envelopes might contain merchandise or contraband rather than correspondence. He took the letters to an examining area in the post office, and felt one of the letters: It "felt like there was something in there, in the envelope. It was not just plain paper that the envelope is supposed to contain." He weighed one of the envelopes, and found it weighed 42 grams, some three to six times the normal weight of an airmail letter. Inspector Kallnischkies then opened that envelope:3
4
"In there I saw some cardboard and between the cardboard, if I recall, there was a plastic bag containing a white powdered substance, which, based on experience, I knew from Thailand would be heroin.
5
"I went ahead and removed a sample. Gave it a field test, a Marquis Reagent field test, and I had a positive reaction for heroin." App. 32.
6
He proceeded to open the other seven envelopes which "in a lot of ways were identical"; examination revealed that at least the contents were in fact identical: each contained heroin.
7
The envelopes were then sent to Washington in a locked pouch where agents of the Drug Enforcement Administration, after obtaining a search warrant, opened the envelopes again and removed most of the heroin.4 The envelopes were then resealed, and six of them were delivered under surveillance. After Kelly collected the envelopes from the three different addressees, rendezvoused with Ramsey, and gave Ramsey a brown paper bag, federal agents arrested both of them. The bag contained the six envelopes with heroin, $1,100 in cash, and "cutting" material for the heroin. The next day, in executing a search upon warrant of Ramsey's residence, agents recovered, inter alia, two pistols.
8
Ramsey and Kelly were indicted, along with Bailey and Ward, in a 17-count indictment.5 Respondents moved to suppress the heroin and the two pistols.6 The District Court denied the motions, and after a bench trial on the stipulated record, respondents were found guilty and sentenced to imprisonment for what is in effect a term of 10 to 30 years. The Court of Appeals for the District of Columbia Circuit, one judge dissenting, reversed the convictions, holding that the "border search exception to the warrant requirement" applicable to persons, baggage, and mailed packages did not apply to the routine opening of international letter mail, and held that the Constitution requires that "before international letter mail is opened, a showing of probable cause be made to and a warrant secured from a neutral magistrate." 176 U.S.App.D.C., at 73, 538 F.2d, at 421.7
II
9
Congress and the applicable postal regulations authorized the actions undertaken in this case. Title 19 U.S.C. § 482, a recodification of Rev.Stat. § 3061, and derived from § 3 of the Act of July 18, 1866, 14 Stat. 178, explicitly deals with the search of an "envelope":
10
"Any of the officers or persons authorized to board or search vessels may . . . search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law . . .."
11
This provision authorizes customs officials to inspect, under the circumstances therein stated, incoming international mail.8 The "reasonable cause to suspect" test adopted by the statute is, we think, a practical test which imposes a less stringent requirement than that of "probable cause" imposed by the Fourth Amendment as a requirement for the issuance of warrants. See United States v. King, 517 F.2d 350, 352 (CA5 1975); cf. Terry v. Ohio, 392 U.S. 1, 8, 21-22, 27, 88 S.Ct. 1868, 1872, 1879-1881, 1883, 20 L.Ed.2d 889 (1968). Inspector Kallnischkies, at the time he opened the letters, knew that they were from Thailand, were bulky, were many times the weight of a normal airmail letter, and "felt like there was something in there." Under these circumstances, we have no doubt that he had reasonable "cause to suspect" that there was merchandise or contraband in the envelopes.9 The search, therefore, was plainly authorized by the statute.10
12
Since the search in this case was authorized by statute, we are left simply with the question of whether the search, nevertheless violated the Constitution. Cf. United States v. Brignoni-Ponce, 422 U.S. 873, 877, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). Specifically, we need not decide whether Congress conceived the statute as a necessary precondition to the validity of the search or whether it was viewed, instead, as a limitation on otherwise existing authority of the Executive.11 Having acted pursuant to, and within the scope of, a congressional Act, Inspector Kallnischkies' searches were permissible unless they violated the Constitution.
III
A.
13
That searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . . .." This acknowledgement of plenary customs power was differentiated from the more limited power to enter and search "any particular dwelling-house, store, building, or other place . . ." where a warrant upon "cause to suspect" was required.12 The historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest. This Court so concluded almost a century ago. In Boyd v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 528, 29 L.Ed. 746 (1886), this Court observed:
14
"The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as 'unreasonable,' and they are not embraced within the prohibition of the amendment." (Emphasis supplied.)
15
This interpretation, that border searches were not subject to the warrant provisions of the Fourth Amendment and were "reasonable" within the meaning of that Amendment, has been faithfully adhered to by this Court. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), after noting that "(T)he Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable," id., at 147, 45 S.Ct. at 283, recognized the distinction between searches within this country, requiring probable cause, and border searches, id., at 153-154, 45 S.Ct., at 285:
16
"It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country . . . have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise."13 (Emphasis supplied.)
17
More recently, we noted this longstanding history in United States v. Thirty-seven Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 1408, 28 L.Ed.2d 822 (1971):
18
"But a port of entry is not a traveler's home. His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search. Customs officials characteristically inspect luggage and their power to do so is not questioned in this case; it is an old practice and is intimately associated with excluding illegal articles from the country." In United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 125, 93 S.Ct. 2665, 2667, 37 L.Ed.2d 500 (1973), we observed: "Import restrictions and searches of persons or packages at the national borders rest on different considerations and different rules of constitutional law from domestic regulations. The Constitution gives Congress broad, comprehensive powers '(t)o regulate Commerce with foreign Nations.' Art. I, § 8, cl. 3. Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry." Finally citing Carroll and Boyd, this Court stated in Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973), that it was "without doubt" that the power to exclude aliens "can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders." See also id., at 288, 93 S.Ct., at 2539 (White, J., dissenting).
19
Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be "reasonable" by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless "reasonable" has a history as old as the Fourth Amendment itself.14 We reaffirm it now.
B
20
Respondents urge upon us, however, the position that mailed letters are somehow different, and, whatever may be the normal rule with respect to border searches, different considerations, requiring the full panoply of Fourth Amendment protections, apply to international mail. The Court of Appeals agreed, and felt that whatever the rule may be with respect to travelers, their baggage, and even mailed packages, it would not "extend" the border-search exception to include mailed letter-size envelopes. 176 U.S.App.D.C., at 73, 538 F.2d at 421. We do not agree that this inclusion of letters within the border-search exception represents any "extension" of that exception.
21
The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country. It is clear that there is nothing in the rationale behind the border-search exception which suggests that the mode of entry will be critical. It was conceded at oral argument that customs officials could search, without probable cause and without a warrant, envelopes carried by an entering traveler, whether in his luggage or on his person. Tr. of Oral Arg. 43-44. Surely no different constitutional standard should apply simply because the envelopes were mailed not carried. The critical fact is that the envelopes cross the border and enter this country, not that that are brought in by one mode of transportation rather than another. It is their entry into this country from without it that makes a resulting search "reasonable."
22
Almost a century ago this Court rejected such a distinction in construing a protocol to the Treaty of Berne, 19 Stat. 604, which prohibited the importation of letters which might contain dutiable items. Cotzhausen v. Nazro, 107 U.S. 215, 2 S.Ct. 503, 27 L.Ed. 540 (1883). Condemning the unsoundness of any distinction between entry by mail and entry by other means, Mr. Justice Miller, on behalf of a unanimous Court, wrote, id., at 218, 2 S.Ct., at 505:
23
"Of what avail would it be that every passenger, citizen and foreigner, without distinction of country or sex, is compelled to sign a declaration before landing, either that his trunks and satchels in hand contain nothing liable to duty, or if they do, to state what it is, and even the person may be subjected to a rigid examination, if the mail is to be left unwatched, and all its sealed contents, even after delivery to the person to whom addressed, are to be exempt from seizure, though laces, jewels, and other dutiable matter of great value may thus be introduced from foreign countries."
24
The historically recognized scope of the border-search doctrine, suggests no distinction in constitutional doctrine stemming from the mode of transportation across our borders. The contrary view of the Court of Appeals and respondents stems, we think, from an erroneous reading of Carroll v. United States, 267 U.S., at 153, 45 S.Ct., at 285, under which the Court of Appeals reasoned that "the rationale of the border search exception . . . is based upon . . . the difficulty of obtaining a warrant when the subject of the search is mobile, as a car or person . . .." 176 U.S.App.D.C., at 70, 538 F.2d, at 418.15
25
The fundamental difficulty with this position is that the "border search" exception is not based on the doctrine of "exigent circumstances" at all. It is a longstanding, historically recognized exception to the Fourth Amendment's general principle that a warrant be obtained, and in this respect is like the similar "search incident to lawful arrest" exception treated in United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973). We think that the language in Carroll v. United States, supra, makes this point abundantly clear. The Carroll Court quoted verbatim the above-quoted language from Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), including the reference to customs searches and seizures of the kind authorized by 1 Stat. 29, 43, as being neither "unreasonable" nor "embraced within the prohibition of the (Fourth) (A)mendment." Later in the opinion, the Court commented that having "established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made." 267 U.S., at 153, 45 S.Ct., at 285 (emphasis supplied). It then in the passage quoted supra, at 618, distinguished, among these types of searches which required no warrant, those which required probable cause from those which did not: border searches did not; vehicular searches inside the country did. Carroll thus recognized that there was no "probable cause" requirement at the border. This determination simply has nothing to do with "exigent circumstances."
26
The Court of Appeals also relied upon what it described as this Court's refusal in recent years twice "to take an expansive view of the border search exception or the authority of the Border Patrol. See United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973)." 176 U.S.App.D.C., at 72, 538 F.2d, at 420. But, as the language from each of these opinions suggests, 422 U.S., at 876, 884, 95 S.Ct., at 2578, 2581; 413 U.S., at 272-273, 93 S.Ct., at 2539-2540, plenary border-search authority was not implicated by our refusal to uphold searches and stops made at places in the interior of the country; the express premise for each holding was that the checkpoint or stop in question was not the border or its "functional equivalent."
27
In view of the wealth of authority establishing the border search as "reasonable" within the Fourth Amendment even though there be neither probable cause nor a warrant, we reject the distinctions made by the Court of Appeals in its opinion.
28
Nor do we agree that, under the circumstances presented by this case, First Amendment considerations dictate a full panoply of Fourth Amendment rights prior to the border search of mailed letters. There is, again, no reason to distinguish between letters mailed into the country, and letters carried on the traveler's person.16 More fundamentally, however, the existing system of border searches has not been shown to invade protected First Amendment rights,17 and hence there is no reason to think that the potential presence of correspondence makes the otherwise constitutionally reasonable search "unreasonable."
29
The statute in question requires that there be "reasonable cause to believe" the customs laws are being violated prior to the opening of envelopes. Applicable postal regulations flatly prohibit, under all circumstances, the reading of correspondence absent a search warrant, 19 CFR § 145.3 (1976):
30
"No customs officer or employee shall read or authorize or allow any other person to read any correspondence contained in sealed letter mail of foreign origin unless a search warrant has been obtained in advance from an appropriate judge or U.S. magistrate which authorizes such action."
31
Cf. 18 U.S.C. § 1702.
32
We are unable to agree with the Court of Appeals that the opening of international mail in search of customs violations, under the above guidelines, impermissibly chills the exercise of free speech. Accordingly, we find it unnecessary to consider the constitutional reach of the First Amendment in this area in the absence of the existing statutory and regulatory protection.18 Here envelopes are opened at the border only when the customs officers have reason to believe they contain other than correspondence, while the reading of any correspondence inside the envelopes is forbidden. Any "chill" that might exist under these circumstances may fairly be considered not only "minimal," United States v. Martinez-Fuerte, 428 U.S. 543, 560, 562, 96 S.Ct. 3074, 3083, 3084, 49 L.Ed.2d 1116 (1976); cf. United States v. Biswell, 406 U.S. 311, 316-317, 92 S.Ct. 1593, 1596-1597, 32 L.Ed.2d 87 (1972), but also wholly subjective.19
33
We therefore conclude that the Fourth Amendment does not interdict the actions taken by Inspector Kallnischkies in opening and searching the eight envelopes. The judgment of the Court of Appeals is, therefore,
34
Reversed.
35
Mr. Justice POWELL, concurring.
36
The statute at issue expressly authorizes customs officials to "search any . . . envelope" at the border where there is "reasonable cause to suspect" the importation of contraband. 19 U.S.C. § 482. In view of the necessarily enhanced power of the Federal Government to enforce customs laws at the border, I have no doubt that this statute requiring as a precondition to the opening of mail "reasonable cause to suspect" a violation of law adequately protects both First and Fourth Amendment rights.*
37
I therefore join in the judgment of the Court. On the understanding that the precedential effect of today's decision does not go beyond the validity of mail searches at the border pursuant to the statute, I also join the opinion of the Court.
38
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
39
The decisive question in this case is whether Congress has granted customs officials the authority to open and inspect personal letters entering the United States from abroad without the knowledge or consent of the sender or the addressee, and without probable cause to believe the mail contains contraband or dutiable merchandise.
40
In 1971 the Department of the Treasury and the Post Office Department first asserted that Congress had granted such authority in an awkwardly drafted statute enacted in 1866. Under the earlier practice, which had been consistently followed for 105 years, customs officials were not allowed to open foreign mail except in the presence, and with the consent, of the addresses,1 unless of course a warrant supported by probable cause had been first obtained. There are five reasons why I am convinced that Congress did not authorize the kind of secret searches of private mail that the Executive here conducted.
41
First, throughout our history Congress has respected the individual's interest in private communication. The notion that private letters could be opened and inspected without notice to the sender or the addressee is abhorrent to the tradition of privacy and freedom to communicate protected by the Bill of Rights, I cannot believe that any member of the Congress would grant such authority without considering its constitutional implications.2
42
Second, the legislative history of the 1866 statute unambiguously discloses that this very concern was voiced during debate by Senator Howe, and that he was assured by the sponsor of the legislation that the bill would not authorize the examination of the United States mails. This colloquy is too plain to be misunderstood:
43
"Mr. HOWE. The second and third sections of this bill speak of the seizure, search, and examination of all trunks, packages, and envelopes. It seems to me that language is broad enough to cover the United States mails. I suppose it is not the purpose of the bill to authorize the examination of the United States mails.
44
"Mr. MORRILL (sponsor of the bill). Of course not.
45
"Mr. HOWE. I propose to offer an amendment to prevent such a construction.
46
"Mr. EDMUNDS. There is no danger of such a construction being placed upon this language. It is the language usually employed in these bills.
47
"Mr. HOWE. If gentlemen are perfectly confident that it will bear no such construction, and will receive no such construction, I do not care to press it.
48
"The PRESIDING OFFICER. The Senator from Wisconsin withdraws his amendment."3
49
Third, the language of the statute itself, when read in its entirety, quite plainly has reference to packages of the kind normally used to import dutiable merchandise.4 It is true that buried deep in the first long sentence in § 3 of the Act to prevent smuggling there is an authorization to "search any trunk or envelope, wherever found." I do not believe, however, that the word "envelope" as there used was intended to refer to ordinary letters. Contemporary American dictionaries emphasize the usage of the word as descriptive of a package or wrapper as well as an ordinary letter.5 This emphasis is consistent with the text of the bill as originally introduced, which used the phrase "any trunk, or other envelope."6 Moreover, in 1866 when the Act was passed, there was no concern expressed in Congress about the smuggling of merchandise that would fit in a letter-size envelope.7 A legislative decision to authorize the secret search of private mail would surely be expressed in plainer language than is found in the long statutory provision quoted in the margin; at the very least it would be supported by some affirmative evidence in the legislative history rather than the total disclaimer in the colloquy quoted above.
50
Fourth, the consistent construction of the statutory authorization by a series of changing administrations over a span of 105 years must be accorded great respect.8 NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-275, 94 S.Ct. 1757, 1761-1762, 40 L.Ed.2d 134; Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 114-115, 59 S.Ct. 423, 425-426, 83 L.Ed. 536. If the Executive perceives that new conditions and problems justify enlargement of the authority that had been found adequate for over a century, then these matters should be brought to the attention of Congress. Cf. H. K. Porter Co. v. NLRB, 397 U.S. 99, 109, 90 S.Ct. 821, 826, 25 L.Ed.2d 146.9
51
Finally, the asserted justification for the broad power claimed is so weak that it is difficult to believe that Congress would accept it without the most searching analysis. The fear the new practice is intended to overcome is that the addressee of a suspicious item of mail would withhold consent to open foreign mail, thereby necessitating the return of the item to the sender. But the refusal to accept delivery without disclosing the contents of a suspicious letter would itself be a fact which could be considered along with whatever indicia caused the inspector to regard the item with suspicion in the first place in a probable-cause determination. There is no reason to believe that the alternatives of probable cause or consent would lead to the extensive return of contraband that would otherwise be confiscated on the basis of "reasonable cause to suspect."
52
If the Government is allowed to exercise the power it claims, the door will be open to the wholesale, secret examination of all incoming international letter mail. No notice would be necessary either before or after the search. Until Congress has made an unambiguous policy decision that such an unprecedented intrusion upon a vital method of personal communication is in the Nation's interest, this Court should not address the serious constitutional question it decides today. For it is settled that
53
"when action taken by an inferior governmental agency was accomplished by procedures which raise serious constitutional questions, an initial inquiry will be made to determine whether or not 'the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use.' (Greene v. McElroy, 360 U.S. 474,) 507 (79 S.Ct. 1400, 3 L.Ed.2d 1377)." Hannah v. Larche, 363 U.S. 420, 430, 80 S.Ct. 1502, 1508, 4 L.Ed.2d 1307.
54
Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347-348, 56 S.Ct. 466, 483-484, 80 L.Ed. 688 (Brandeis, J., concurring). Accordingly, I would affirm the judgment of the Court of Appeals.
1
Several Courts of Appeals have held that international letter class mail may be opened, pursuant to a border search, without probable cause and without a warrant. United States v. Milroy, 538 F.2d 1033 (CA4), cert. denied, 426 U.S. 924, 96 S.Ct. 2633, 49 L.Ed.2d 378 (1976); United States v. King, 517 F.2d 350 (CA5 1975); United States v. Barclift, 514 F.2d 1073 (CA9), cert. denied, 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 63 (1975); United States v. Bolin, 514 F.2d 554 (CA7 1975); United States v. Odland, 502 F.2d 148 (CA7), cert. denied, 419 U.S. 1088, 95 S.Ct. 679, 42 L.Ed.2d 680 (1974). Several other Courts of Appeals, in approving the warrantless opening of mailed packages crossing the borders, have indicated that the opening of international letter-class mail should be governed by the same standards. United States v. Doe, 472 F.2d 982 (CA2), cert. denied, sub nom. Rodriguez v. United States, 411 U.S. 969, 93 S.Ct. 2160, 36 L.Ed.2d 691 (1973); United States v. Beckley, 335 F.2d 86 (CA6 1964), cert. denied, sub nom. Stone v. United States, 380 U.S. 922, 85 S.Ct. 921, 13 L.Ed.2d 807 (1965). The First Circuit has reserved the question of letters. United States v. Emery, 541 F.2d 887, 888-889 (1976).
2
The mail was inspected at the General Post Office in New York City, where incoming international air mail landing at Kennedy Airport is taken for routing and customs inspections. There is no dispute that this is the "border" for purposes of border searches, see n. 11, infra.
3
Inspector Kallnischkies also testified that his "normal procedure," when examining envelopes from certain countries which were of a certain weight and bulkiness, was to "shake it a little," and "if it moves, I know there is something in there that is not correspondence. It is merchandise and I have to open it to check it out." App. 48-49. He was unable to specifically recall, however, whether or not he had followed the "normal procedure" in this case.
4
The Government does not seek to justify the original discovery of the heroin on the basis of this warrant: "(A) post-opening warrant obviously does not justify the original opening." Brief for the United States 4 n. 2. We accordingly accord no significance to the obtaining of this subsequent warrant.
5
Bailey and Ward, although indicted, were not tried, as they have remained outside the United States.
6
The Government acknowledges that "(t)he weapons were found as a result of respondents' arrests and so are 'fruit' of the discovery of the heroin. The convictions consequently must stand or fall with the heroin offenses." Id., at 5 n. 4.
7
Neither court below considered whether Ramsey or Kelly had standing to object to the opening of the envelopes in light of the fact that none of the envelopes were addressed to them. The Government, however, did not raise the issue below, and consequently we do not reach it. United States v. Santana, 427 U.S. 38, 41 n. 2, 96 S.Ct. 2406, 2409, 49 L.Ed.2d 300 (1976).
8
Postal regulations have implemented this authority. See 19 CFR § 145.2 (1976); 39 CFR § 61.1 (1975). The regulations were promulgated in 1971; prior to that time existing regulations did not implement the statutory authority. The fact that postal authorities did not open incoming international letter-class mail upon "reasonable cause to suspect" prior to 1971 does not change our analysis.
Title 39 U.S.C. § 3623(d), which prohibits the opening of first-class mail of "domestic origin," except under authority of a search warrant authorized by law . . .," has, by its own terms, no application to international mail of any class. A proposed amendment, which would have imposed similar statutory requirements on the opening of international mail, was defeated on the floor of the House, 116 Cong.Rec. 20482-20483 (1970).
Our dissenting Brethren find no fewer than five separate reasons for refusing to follow the unambiguous language of the statutory section. The first is the longstanding respect Congress has shown for "the individual's interest in private communication." Post, at 626. But as we examine it, infra, at 616-619, no such support may be garnered from the history of the Fourth Amendment insofar as border searches are concerned. Insofar as they rely on the First Amendment, they ignore the limitations imposed on the search by the statute, infra, at 623-624, as well as by the regulations. Postulating a sensitive concern for First Amendment values as of 1866 is a difficult historical exercise on the basis of available materials from that time. Cf. Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1878) (Fourth Amendment analysis only). Most puzzling of all, however, is the dissent's reliance on the defeated amendment, offered in 1970, when there is no dearth of available materials, which would have imposed a specific warrant requirement on the opening of international letter-class mail. Contrary to the tenor of the dissent, the amendment was defeated, not passed. The one bit of legislative history the dissent quotes, a statement of Congressman Derwinski, reflects only the concern that with the amendment " 'the problem of stopping the flow of narcotics and pornography would be greatly compounded.' " Post, at 626 n. 2. We do not see how any solace whatever for the dissenting position may be derived from this sort of legislative history.
The dissent also relies on a brief colloquy on the floor of the Senate during the debate on the 1866 Act. The colloquy is notable both for its brevity and for its ambiguity. It does not distinguish
between mailed packages and mailed letters; it refers generally to the " 'examination of . . . the United States mails.' " Post, at 627. Yet, by that time, the "mail" encompassed both. See 12 Stat. 704. (To the extent the colloquy was meant to encompass any intrusion on the "mails," the statute has long since been interpreted otherwise. Cotzhausen v. Nazro, 107 U.S. 215, 219, 2 S.Ct. 503, 505, 27 L.Ed. 540 (1883).) Perhaps because of its brevity, the colloquy does not distinguish between domestic and international mail, nor does it distinguish between the searching of envelopes for contraband and the possible reading of enclosed communications. It explicitly manifests a concern with § 2 as well as with § 3 of the bill. But § 2 allowed customs inspectors "to go on board of any vessel . . . and to inspect, search, and examine the same, and any person, trunk, or envelope on board . . . ." Section 3, however, contains a "reasonable cause to suspect" requirement that is not found in § 2, and the colloquy may have simply referred to a concern about the wholesale opening, and reading, of letters. Cf. Cong. Globe 39th Cong., 1st Sess., 3440-3441 (1866). The colloquy by no means indicates to us that Congress was concerned only with detecting smuggling that would be carried in "trunk"-sized packages. It is at best insufficient to overcome the precise and clear statutory language Congress actually enacted.
The dissent additionally relies on the language of the statute in its entirety as demonstrating a concern only with "packages of the kind normally used to import dutiable merchandise." Post, at 628. But this assertion assuming we as judges know what size packages dutiable merchandise usually comes in is wholly contrary to the thrust of the purpose, and the language of the Act. The purpose of the Act is "to Prevent Smuggling." Nowhere does this purpose, however and wherever articulated, reflect a concern with the physical size of the container employed in smuggling, nor do we possess any reliable indication that only large items were smuggled into this country in 1866. As for the word "envelope," it is difficult to see how our dissenting Brethren derive comfort from its use in the statute. The contemporary dictionary source they cite states that the most common use of the word "envelope" is in the sense of " 'the cover or wrapper of a document, as of a letter.' " Post, at 630 n. 5. We are quite unable to see how this, the most common usage of the word, reinforces the view that Congress intended only a narrow definition when it used the word without restriction.
The dissent also relies on a "consistent construction" over 105
years by the Executive. Post, at 631. To the extent it relies on a construction that things entering by mail are not covered by the statute, this reliance founders on the opinion of a former Acting Attorney General. See 18 Op.Atty.Gen. 457 (1886). To the extent it is referring only to letter-sized mail, the dissent nowhere demonstrates any actual interpretation by anyone that the congressional authority was perceived as an affirmative limitation on the power of the Executive to open letters at the border when there existed "reasonable cause" to suspect a violation of customs laws. The evidence marshaled by our dissenting Brethren on this point could be called "consistent" only by the most generous appraiser of such material.
The dissent's final reliance is on the assertion that asking the addressee for consent to open a letter had not been proved unworkable. Presumably the conclusion to be drawn from this is that the Executive's reason for a change in its policy is weak. But this is beside the point; it reflects not at all on Congress' words or intent in 1866 or at any other time. That the Executive Branch may have relied on a less-than-cogent reason in its 1971 regulatory change has nothing to do with the interpretation of an Act of Congress.
Underlying all of these reasons, apparently, is the fear that "(i)f the Government is allowed to exercise the power it claims, the door will be open to the wholesale, secret examination of all incoming international letter mail." Post, at 632. That specter is simply not presented by this case. As we observe, infra, at 623-624, the opening of mail is limited by a "reasonable cause" requirement, while the reading of letters is totally interdicted by regulation. It is this unwarranted speculation, and not the policy followed by the Executive, that poses the "serious constitutional question" to be avoided.
9
The Court of Appeals, it should be noted, evidently believed that Inspector Kallnischkies possessed sufficient information at the time the envelopes were opened to meet the stricter "probable cause" requirement; it believed "that the facts in this case are such that, had they been presented to a magistrate, issuance of a search warrant permitting opening of the envelopes would have been appropriate." 176 U.S.App.D.C. 67, 73 n. 8, 538 F.2d 415, 421 n. 8. Because of our disposition of this case, we do not reach that question.
10
In light of our conclusion that there existed "reasonable cause to suspect" a violation of the customs laws, we need not, and do not, decide whether the search would have nonetheless been authorized by other statutory grants of authority urged alternatively upon us by the Government. Title 19 U.S.C. § 482 also authorizes customs officials to "stop, search, and examine . . . any vehicle, beast, or person, on which or whom . . . they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise . . .." Title 19 U.S.C. § 1582 provides, in pertinent part, that "(t)he Secretary of the Treasury may prescribe regulations for the search of persons and baggage . . .; and all persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the Government under such regulations."
11
Although the statutory authority authorizes searches of envelopes "wherever found," 19 U.S.C. § 482, the envelopes were searched at the New York City Post Office as the mail was entering the United States. We, therefore, do not have before us the question, recently addressed in other contexts, of the geographical limits to border searches. See United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Nor do we need to decide whether the broad statutory authority subjects such mail to customs inspection at a place other than the point of entry into this country. See United States v. King, 517 F.2d, at 354 ("(T)he envelopes had passed an initial stage in the customs process when they were routed to Alabama, but they were still in the process of being delivered, and still subject to customs inspection").
12
Section 23 of this customs statute provided, in pertinent part:
"(I)t shall be lawful for the collector, or other officer of the customs, after entry made of any goods, wares or merchandise, on suspicion of fraud, to open and examine, in the presence of two or more reputable merchants, any package or packages thereof . . .."
Section 24 of this customs statute provided, in pertinent part:
"(E)very collector, naval officer and surveyor, or other person specially appointed by either of them for that purpose, shall have full power and authority, to enter any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed; and therein to search for, seize, and secure any such goods, wares or merchandise; and if they shall have cause to suspect a concealment thereof, in any particular dwelling-house, store, building, or other place, they or either of them shall, upon application on oath or affirmation to any justice of the peace, be entitled to a warrant to enter such house, store, or other place (in the day time only) and there to search for such goods, and if any shall be found, to seize and secure the same for trial . . .."
13
We do not decide whether, and under what circumstances, a border search might be deemed "unreasonable" because of the particularly offensive manner in which it is carried out. Cf. Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356-358, 51 S.Ct. 153, 157-158, 75 L.Ed. 374 (1931).
14
The opinion in Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 284, 69 L.Ed. 543 (1925), itself reminds us that "(t)he Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens."
15
This explanation does not, and cannot, fully explain the border-search "exception" even if it were grounded in the "exigent circumstances" doctrine. For a letter may as easily be held by customs officials when it crosses with a traveler as it can when it crosses in the mail. Too, this explanation cannot explain the different treatment which the Court of Appeals apparently would have accorded mailed packages, which presumably may be detained as easily as letter-size envelopes.
16
There is no reason to infer that mailed letters somehow carry with them a greater expectation of privacy than do letters carried on one's person. Cf. 39 U.S.C. § 3623(d).
17
There are limited justifiable expectations of privacy for incoming material crossing United States borders. Not only is there the longstanding, constitutionally authorized right of customs officials to search incoming persons and goods, but there is no statutorily created expectation of privacy. See 39 U.S.C. § 3623(d). See also United States v. King, 517 F.2d, at 354; United States v. Odland, 502 F.2d 148 (CA7), cert. denied, 419 U.S. 1088, 95 S.Ct. 679, 42 L.Ed.2d 680 (1974); United States v. Doe, 472 F.2d, at 985.
18
We, accordingly, have no occasion to decide whether, in the absence of the regulatory restrictions, speech would be "chilled," or, if it were, whether the appropriate response would be to apply the full panoply of Fourth Amendment requirements. Cf. Roaden v. Kentucky, 413 U.S. 496, 502-506, 93 S.Ct. 2796, 2800-2802, 37 L.Ed.2d 757 (1973); Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965).
19
In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), this Court, in the context of the opening of mail from an attorney to a prisoner-client, noted that "freedom from censorship is not equivalent to freedom from inspection or perusal," id., at 576, 94 S.Ct., at 2984. This Court held:
"As to the ability to open the mail in the presence of inmates, this could in no way constitute censorship, since the mail would not be read. Neither could it chill such communications, since the inmate's presence insures that prison officials will not read the mail. The possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison officials' opening the letters." Id., at 577, 94 S.Ct. at 2985.
We deal here, of course, with borders, not prisons. Yet the power of customs officials to take plenary action to stop the entry of contraband is no less in the border search area than in prisons. The safeguards in the border-search area, we think, are comparable to those found constitutionally valid in Wolff.
*
As the Court notes, ante, at 623, postal regulations flatly prohibit the reading of "any correspondence contained in sealed letter mail of foreign origin unless a search warrant has been obtained . . . ." 19 CFR § 145.3 (1976).
1
This was the procedure followed by the customs officials in Cotzhausen v. Nazro, 107 U.S. 215, 2 S.Ct. 503, 27 L.Ed. 540 relied upon by the Government here. For 100 years, from 1871 to 1971, Post Office Regulations allowed incoming international letter mail to be opened only in the presence, and with the consent, of the addressee. Brief for United States 20-21, nn. 12a, 14 (citing regulations).
2
This conviction is bolstered by the history of the defeat of the amendment which would have imposed a specific warrant requirement on the opening of international mails, ante, at 612 n. 8. The amendment was offered during the course of House debate on the Postal Reorganization and Salary Adjustment Act of 1970, Title 39 U.S.C., which created the United States Postal Service. This amendment was but one of more than 35 amendments to the Act offered on the floor of the House that day. 116 Cong.Rec. 20481 (1970). Speaking immediately before the amendment was defeated, Congressman Derwinski said:
"Going beyond the constitutional debate which we do not have the time for this afternoon, if this amendment were to be adopted, the problem of stopping the flow of narcotics and pornography would be greatly compounded.
"I do not believe we want to legislate on such a major issue with just 10 minutes of debate." Id., at 20483.
Under such circumstances the defeat of this amendment cannot be considered an expression of the will of the House of Representatives on the issue, but it does emphasize the reluctance of Congress to legislate in the area without careful consideration of the constitutional questions. See, e. g., 18 U.S.C. § 2510 (Omnibus Crime Control and Safe Streets Act of 1968) (warrant required to electronically intercept wire or oral communications); S. Rep. No. 1097, 90th Cong., 2d Sess., 66-76, 88-108, 161-177, 182-183, 187, 214-218, 224-226, 234-239 (1968); 1968 U.S.Code and Admin.News p. 2112. I do not, of course, imply that this incident is, in itself, sufficient to demonstrate congressional sensitivity to the individual interest in private communication. See ante, at 612, n. 8. I cannot believe, however, that the Court seriously questions the validity of my assumption that Congress (in 1866 as well as today) was indeed concerned about such matters.
3
Cong. Globe, 39th Cong., 1st Sess., 2596 (1866). After consideration of one more amendment the bill passed the Senate the same day.
4
The first three sections of the Act, Further to Prevent Smuggling and for Other Purposes, enacted on July 18, 1866, read as follows:
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, for the purposes of this act, the term 'vessel,' whenever hereinafter used, shall be held to include every description of water-craft, raft, vehicle, and contrivance used or capable of being used as a means or auxiliary of transportation on or by water; and the term 'vehicle,' whenever hereinafter used, shall be held to include every description of carriage, wagon, engine, car, sleigh, sled, sledge, hurdle, cart, and other artificial contrivance, used or capable of being used as a means or auxiliary of transportation on land.
"Sec. 2. And be it further enacted, That it shall be lawful for any officer of the customs, including inspectors and occasional inspectors, or of a revenue cutter, or authorized agent of the Treasury Department, or other person specially appointed for the purpose in writing by a collector, naval officer, or surveyor of the customs, to go on board of any vessel, as well without as within his district, and to inspect, search, and examine the same, and any person, trunk, or envelope on board, and to this end, to hail and stop such vessel if under way, and to use all necessary force to compel compliance; and if it shall appear that any breach or violation of the laws of the United States has been committed, whereby or in consequence of which, such vessel, or the goods, wares, and merchandise, or any part thereof, on board of or imported by such vessel, is or are liable to forfeiture, to make seizure of the same, or either or any part thereof, and to arrest, or in case of escape, or any attempt to escape, to pursue and arrest any person engaged in such breach or violation: Provided, That the original appointment in writing of any person specially appointed as aforesaid shall be filed in the custom-house where such appointment is made.
"Sec. 3. And be it further enacted, That any of the officers or persons authorized by the second section of this act to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person on which or whom he or they shall suspect there are goods, wares, or merchandise which are subject to duty or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or
envelope, wherever found, in which he may have a reasonable cause to suspect there are goods which were imported contrary to law; and if any such officer or other person so authorized as aforesaid shall find any goods, wares, or merchandise, on or about any such vehicle, beast, or person, or in any such trunk or envelope, which he shall have reasonable cause to believe are subject to duty, or to have been unlawfully introduced into the United States, whether by the person in possession or charge, or by, in, or upon such vehicle, beast, or otherwise, he shall seize and secure the same for trial; and every such vehicle and beast, or either, together with teams or other motive-power used in conveying, drawing, or propelling such vehicle, goods, wares, or merchandise, and all other appurtenances, including trunks, envelopes, covers, and all means of concealment, and all the equipage, trappings, and other appurtenances of such beast, team, or vehicle shall be subject to seizure and forfeiture; and if any person who may be driving or conducting, or in charge of any such carriage or vehicle or beast, or any person travelling, shall wilfully refuse to stop and allow search and examination to be made as herein provided, when required so to do by any authorized person, he or she shall, on conviction, be fined in any sum, in the discretion of the court convicting him or her, not exceeding one thousand dollars, nor less than fifty dollars; and the Secretary of the Treasury may from time to time prescribe regulations for the search of persons and baggage, and for the employment of female inspectors for the examination and search of persons of their own sex; and all persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the government, under such regulations as the Secretary of the Treasury shall from time to time prescribe: Provided, That no railway car or engine or other vehicle, or team used by any person or corporation, as common carriers in the transaction of their business as such common carriers shall be subject to forfeiture by force of the provisions of this act unless it shall appear that the owners, superintendent, or agent of the owner in charge thereof at the time of such unlawful importation or transportation thereon or thereby, was a consenting party, or privy to such illegal importation or transportation." 14 Stat. 178-179.
5
"A wrapper; an outward covering or case." J. Worcester, A Dictionary of the English Language (1860).
"That which envelops, wraps up, encases, or surrounds; a wrapper; a cover; especially, the cover or wrapper of a document, as of a letter." N. Webster, An American Dictionary of the English Language (Goodrich & Porter eds. 1869).
These are the primary definitions given for "envelope."
6
The word "other" was deleted by amendment, Cong. Globe, 39th Cong., 1st Sess., 2564 (1866). I recognize that one may argue that the deletion of the word "other" is evidence of an intent to include every kind of envelope rather than just those comparable to a "trunk." It seems more reasonable to infer, however, that the draftsmen considered the direct comparison to a trunk too restrictive and merely had in mind all containers which performed the same kind of packaging function even though not as large as a trunk. It seems unrealistic to interpret this change as intended to broaden the statute to encompass personal mail.
7
The stated object of the 1866 Act was to prevent smuggling, especially from Canada along the North and Northwestern frontier:
"It has been found very difficult on our frontier during the last two years to prevent the system of smuggling which has been going on and increasing day by day. The custom-houses are defrauded and the Government is cheated." Remarks of Congressman Eliot, Cong. Globe, 39th Cong., 1st Sess., 3419 (1866).
See also remarks of Senator Morrill, id., at 2563; of Senator Williams, id., at 2567.
8
An 1886 opinion of Acting Attorney General Jenks made reference to the practice followed in Cotzhausen v. Nazro, 107 U.S. 215, 2 S.Ct. 503, 27 L.Ed. 540, a case which involved the opening of package mail with the consent, and in the presence of the addressee. See 18 Op.Atty.Gen. 457, 458. No opinion of any subsequent Attorney General has construed the statute any more broadly.
9
In support of its argument in this Court that the 1971 regulations are reasonable within the meaning of the Fourth Amendment, the Government has assembled a plethora of statistical data obtained after the regulations were adopted. Such a post hoc justification cannot, of course, inform us about the actual motivation for the adoption of the regulations. I mention the point only because the Government's reliance on these data tends to confirm my judgment that if a new rule is to be fashioned, it should be drafted by the Congress.
| 01
|
431 U.S. 783
97 S.Ct. 2044
52 L.Ed.2d 752
UNITED STATES, Petitioner,v.Eugene LOVASCO, Sr.
No. 75-1844.
Argued March 21-22, 1977.
Decided June 9, 1977.
Rehearing Denied Oct. 3, 1977.
See 434 U.S. 881, 98 S.Ct. 242.
Syllabus
More than 18 months after federal criminal offenses were alleged to have occurred, respondent was indicted for committing them. Beyond an investigative report made a month after the crimes were committed, little additional information was developed in the following 17 months. Claiming that the preindictment delay, during which material defense testimony had been lost, deprived him of due process, respondent moved to dismiss the indictment. The District Court, which found that the delay had not been explained or justified and was unnecessary and prejudicial to respondent, granted the motion to dismiss. The Court of Appeals affirmed, concluding that the delay, which it found was solely attributable to the Government's hope that other participants in the crime would be discovered, was unjustified. Held : The Court of Appeals erred in affirming the District Court's dismissal of the indictment. Pp. 788-797.
(a) Although the Speedy Trial Clause of the Sixth Amendment is applicable only after a person has been accused of a crime and statutes of limitations provide " 'the primary guarantee against bringing overly stale criminal charges,' " United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468, those statutes do not fully define a defendant's rights with respect to events antedating the indictment, and the Due Process Clause has a limited role to play in protecting against oppressive delay. Pp. 788-789.
(b) While proof of prejudice makes a due process claim ripe for adjudication, it does not automatically validate such a claim, and the reasons for the delay must also be considered. Pp. 789-790.
(c) To prosecute a defendant following good-faith investigative delay, as apparently existed in this case, does not deprive him of due process even if his defense might have been somewhat prejudiced by the lapse of time. Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied that they will be able to establish a suspect's guilt beyond a reasonable doubt. Nor is there a constitutional requirement that charges must be filed after there is sufficient evidence to prove such guilt but before the investigation is complete. An immediate arrest or indictment might impair the prosecutors' ability to continue the investigation or obtain additional indictments, would pressure prosecutors into resolving doubtful cases in favor of early (and possibly unwarranted) prosecutions, and would preclude full consideration of the desirability of not prosecuting in particular cases. Pp. 790-796.
8 Cir., 532 F.2d 59, reversed.
Louis Gilden, St. Louis, for the respondent.
John P. Rupp, Washington, D. C., for the petitioner.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
We granted certiorari in this case to consider the circumstances in which the Constitution requires that an indictment be dismissed because of delay between the commission of an offense and the initiation of prosecution.
2
* On March 6, 1975, respondent was indicted for possessing eight firearms stolen from the United States mails, and for dealing in firearms without a license. The offenses were alleged to have occurred between July 25 and August 31, 1973, more than 18 months before the indictment was filed. Respondent moved to dismiss the indictment due to the delay.
3
The District Court conducted a hearing on respondent's motion at which the respondent sought to prove that the delay was unnecessary and that it had prejudiced his defense. In an effort to establish the former proposition, respondent presented a Postal Inspector's report on his investigation that was prepared one month after the crimes were committed, and a stipulation concerning the post-report progress of the probe. The report stated, in brief, that within the first month of the investigation respondent had admitted to Government agents that he had possessed and then sold five of the stolen guns, and that the agents had developed strong evidence linking respondent to the remaining three weapons.1 The report also stated, however, that the agents had been unable to confirm or refute respondent's claim that he had found the guns in his car when he returned to it after visiting his son, a mail handler, at work.2 The stipulation into which the Assistant United States Attorney entered indicated that little additional information concerning the crimes was uncovered in the 17 months following the preparation of the Inspector's report.3
4
To establish prejudice to the defense, respondent testified that he had lost the testimony of two material witnesses due to the delay. The first witness, Tom Stewart, died more than a year after the alleged crimes occurred. At the hearing respondent claimed that Stewart had been his source for two or three of the guns. The second witness, respondent's brother, died in April 1974, eight months after the crimes were completed. Respondent testified that his brother was present when respondent called Stewart to secure the guns, and witnessed all of respondent's sales. Respondent did not state how the witnesses would have aided the defense had they been willing to testify.4
5
The Government made no systematic effort in the District Court to explain its long delay. The Assistant United States Attorney did expressly disagree, however, with defense counsel's suggestion that the investigation had ended after the Postal Inspector's report was prepared. App. 9-10. The prosecutor also stated that it was the Government's theory that respondent's son, who had access to the mail at the railroad terminal from which the guns were "possibly stolen," id., at 17, was responsible for the thefts, id., at 13.5 Finally, the prosecutor elicited somewhat cryptic testimony from the Postal Inspector indicating that the case "as to these particular weapons involves other individuals"; that information had been presented to a grand jury "in regard to this case other than . . . (on) the day of the indictment itself"; and that he had spoken to the prosecutors about the case on four or five occasions. Id., at 20.
6
Following the hearing, the District Court filed a brief opinion and order. The court found that by October 2, 1973, the date of the Postal Inspector's report, "the Government had all the information relating to defendant's alleged commission of the offenses charged against him," and that the 17-month delay before the case was presented to the grand jury "had not been explained or justified" and was "unnecessary and unreasonable." The court also found that "(a)s a result of the delay defendant has been prejudiced by reason of the death of Tom Stewart, a material witness on his behalf." Pet. for Cert. 14a. Accordingly, the court dismissed the indictment.
7
(1) The Government appealed to the United States Court of Appeals for the Eighth Circuit. In its brief the Government explained the months of inaction by stating:
8
"(T)here was a legitimate Government interest in keeping the investigation open in the instant case. The defendant's son worked for the Terminal Railroad and had access to mail. It was the Government's position that the son was responsible for the theft and therefore further investigation to establish this fact was important.
9
". . . Although the investigation did not continue on a full time basis, there was contact between the United States Attorney's office and the Postal Inspector's office throughout . . . and certain matters were brought before a Federal Grand Jury prior to the determination that the case should be presented for indictment . . . ." Brief for United States in No. 75-1852 (CA8), pp. 5-6.
10
The Court of Appeals accepted the Government's representation as to the motivation for the delay, but a majority of the court nevertheless affirmed the District Court's finding that the Government's actions were "unjustified, unnecessary, and unreasonable." 532 F.2d 59, 61 (1976). The majority also found that respondent had established that his defense had been impaired by the loss of Stewart's testimony because it understood respondent to contend that "were Stewart's testimony available it would support (respondent's) claim that he did not know that the guns were stolen from the United States mails." Ibid. The court therefore affirmed the District Court's dismissal of the three possession counts by a divided vote.6
11
We granted certiorari, 429 U.S. 884, 97 S.Ct. 233, 50 L.Ed.2d 164, and now reverse.7
II
12
(2, 3) In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), this Court considered the significance, for constitutional purposes, of a lengthy preindictment delay. We held that as far as the Speedy Trial Clause of the Sixth Amendment is concerned, such delay is wholly irrelevant, since our analysis of the language, history, and purposes of the Clause persuaded us that only "a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the particular protections" of that provision. Id., at 320, 92 S.Ct., at 463.8 We went on to note that statutes of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide " 'the primary guarantee, against bringing overly stale criminal charges.' " Id., at 322, 92 S.Ct., at 464, quoting United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966). But we did acknowledge that the "statute of limitations does not fully define (defendants') rights with respect to the events occurring prior to indictment," 404 U.S., at 324, 92 S.Ct., at 465, and that the Due Process Clause has a limited role to play in protecting against oppressive delay.
13
(4) Respondent seems to argue that due process bars prosecution whenever a defendant suffers prejudice as a result of preindictment delay. To support that proposition respondent relies on the concluding sentence of the Court's opinion in Marion where, in remanding the case, we stated that "(e)vents of the trial may demonstrate actual prejudice, but at the present time appellees' due process claims are speculative and premature." Id., at 326, 92 S.Ct., at 466. But the quoted sentence establishes only that proof of actual prejudice makes a due process claim concrete and ripe for adjudication, not that it makes the claim automatically valid. Indeed, two pages earlier in the opinion we expressly rejected the argument respondent advances here:
14
"(W)e need not . . . determine when and in what circumstances actual prejudice resulting from preaccusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution." Id., at 324-325, 92 S.Ct., at 465. (Footnotes omitted.)
15
Thus Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.
16
(5, 6) The Court of Appeals found that the sole reason for the delay here was "a hope on the part of the Government that others might be discovered who may have participated in the theft . . . ." 532 F.2d, at 61. It concluded that this hope did not justify the delay, and therefore affirmed the dismissal of the indictment. But the Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment. Judges are not free, in defining "due process," to impose on law enforcement officials our "personal and private notions" of fairness and to "disregard the limits that bind judges in their judicial function." Rochin v. California, 342 U.S. 165, 170, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). Our task is more circumscribed. We are to determine only whether the action complained of here, compelling respondent to stand trial after the Government delayed indictment to investigate further violates those "fundamental conceptions of justice which lie at the base of our civil and political institutions," Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935), and which define "the community's sense of fair play and decency," Rochin v. California, supra, 342 U.S., at 173, 72 S.Ct. at 210. See also Ham v. South Carolina, 409 U.S. 524, 526, 93 S.Ct. 848, 850, 35 L.Ed.2d 46 (1973); Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941); Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926); Hurtado v. California, 110 U.S. 516, 535, 4 S.Ct. 111, 120, 28 L.Ed. 232 (1884).
17
(7) It requires no extended argument to establish that prosecutors do not deviate from "fundamental conceptions of justice" when they defer seeking indictments until they have probable cause to believe an accused is guilty; indeed it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause.9 It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt. To impose such a duty "would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself," United States v. Ewell, supra, 383 U.S., at 120, 86 S.Ct., at 776. From the perspective of potential defendants, requiring prosecutions to commence when probable cause is established is undesirable because it would increase the likelihood of unwarranted charges being filed, and would add to the time during which defendants stand accused but untried.10 These costs are by no means insubstantial since, as we recognized in Marion, a formal accusation may "interfere with the defendant's liberty, . . . disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." 404 U.S., at 320, 92 S.Ct., at 463. From the perspective of law enforcement officials, a requirement of immediate prosecution upon probable cause is equally unacceptable because it could make obtaining proof of guilt beyond a reasonable doubt impossible by causing potentially fruitful sources of information to evaporate before they are fully exploited.11 And from the standpoint of the courts, such a requirement is unwise because it would cause scarce resources to be consumed on cases that prove to be insubstantial, or that involve only some of the responsible parties or some of the criminal acts.12 Thus, no one's interests would be well served by compelling prosecutors to initiate prosecutions as soon as they are legally entitled to do so.13
18
(8) It might be argued that once the Government has assembled sufficient evidence to prove guilt beyond a reasonable doubt, it should be constitutionally required to file charges promptly, even if its investigation of the entire criminal transaction is not complete. Adopting such a rule, however, would have many of the same consequences as adopting a rule requiring immediate prosecution upon probable cause.
19
First, compelling a prosecutor to file public charges as soon as the requisite proof has been developed against one participant on one charge would cause numerous problems in those cases in which a criminal transaction involves more than one person or more than one illegal act. In some instances, an immediate arrest or indictment would impair the prosecutor's ability to continue his investigation, thereby preventing society from bringing lawbreakers to justice. In other cases, the prosecutor would be able to obtain additional indictments despite an early prosecution, but the necessary result would be multiple trials involving a single set of facts. Such trials place needless burdens on defendants, law enforcement officials, and courts.
20
Second, insisting on immediate prosecution once sufficient evidence is developed to obtain a conviction would pressure prosecutors into resolving doubtful cases in favor of early and possibly unwarranted prosecutions. The determination of when the evidence available to the prosecution is sufficient to obtain a conviction is seldom clear-cut, and reasonable persons often will reach conflicting conclusions. In the instant case, for example, since respondent admitted possessing at least five of the firearms, the primary factual issue in dispute was whether respondent knew the guns were stolen as required by 18 U.S.C. § 1708. Not surprisingly, the Postal Inspector's report contained no direct evidence bearing on this issue. The decision whether to prosecute, therefore, required a necessarily subjective evaluation of the strength of the circumstantial evidence available and the credibility of respondent's denial. Even if a prosecutor concluded that the case was weak and further investigation appropriate, he would have no assurance that a reviewing court would agree. To avoid the risk that a subsequent indictment would be dismissed for preindictment delay, the prosecutor might feel constrained to file premature charges, with all the disadvantages that would entail.14
21
Finally, requiring the Government to make charging decisions immediately upon assembling evidence sufficient to establish guilt would preclude the Government from giving full consideration to the desirability of not prosecuting in particular cases. The decision to file criminal charges, with the awesome consequences it entails, requires consideration of a wide range of factors in addition to the strength of the Government's case, in order to determine whether prosecution would be in the public interest.15 Prosecutors often need more information than proof of a suspect's guilt, therefore, before deciding whether to seek an indictment. Again the instant case provides a useful illustration. Although proof of the identity of the mail thieves was not necessary to convict respondent of the possessory crimes with which he was charged, it might have been crucial in assessing respondent's culpability, as distinguished from his legal guilt. If, for example, further investigation were to show that respondent had no role in or advance knowledge of the theft and simply agreed, out of paternal loyalty, to help his son dispose of the guns once respondent discovered his son had stolen them, the United States Attorney might have decided not to prosecute, especially since at the time of the crime respondent was over 60 years old and had no prior criminal record.16 Requiring prosecution once the evidence of guilt is clear, however, could prevent a prosecutor from awaiting the information necessary for such a decision.
22
(9) We would be most reluctant to adopt a rule which would have these consequences absent a clear constitutional command to do so. We can find no such command in the Due Process Clause of the Fifth Amendment. In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely "to gain tactical advantage over the accused," United States v. Marion, 404 U.S., at 324, 92 S.Ct., at 465, precisely because investigative delay is not so one-sided.17 Rather than deviating from elementary standards of "fair play and decency," a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of "orderly expedition" to that of "mere speed," Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959). This the Due Process Clause does not require. We therefore hold that to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.
23
(10) In the present case, the Court of Appeals stated that the only reason the Government postponed action was to await the results of additional investigation. Although there is, unfortunately, no evidence concerning the reasons for the delay in the record, the court's "finding" is supported by the prosecutor's implicit representation to the District Court, and explicit representation to the Court of Appeals, that the investigation continued during the time that the Government deferred taking action against respondent. The finding is, moreover, buttressed by the Government's repeated assertions in its petition for certiorari, its brief, and its oral argument in this Court, "that the delay was caused by the government's efforts to identify persons in addition to respondent who may have participated in the offenses." Pet. for Cert. 14.18 We must assume that these statements by counsel have been made in good faith. In light of this explanation, it follows that compelling respondent to stand trial would not be fundamentally unfair. The Court of Appeals therefore erred in affirming the District Court's decision dismissing the indictment.
III
24
(11) In Marion we conceded that we could not determine in the abstract the circumstances in which preaccusation delay would require dismissing prosecutions. 404 U.S., at 324, 92 S.Ct., at 465. More than five years later, that statement remains true. Indeed, in the intervening years so few defendants have established that they were prejudiced by delay that neither this Court nor any lower court has had a sustained opportunity to consider the constitutional significance of various reasons for delay.19 We therefore leave to the lower courts, in the first instance, the task of applying the settled principles of due process that we have discussed to the particular circumstances of individual cases. We simply hold that in this case the lower courts erred in dismissing the indictment.
25
Reversed.
26
Mr. Justice STEVENS, dissenting.
27
If the record presented the question which the Court decides today, I would join its well-reasoned opinion. I am unable to do so because I believe our review should be limited to the facts disclosed by the record developed in the District Court and the traditional scope of review we have exercised with regard to issues of fact.
28
After a thorough hearing on the respondent's motion to dismiss the indictment for prejudicial preindictment delay a hearing at which both sides were given every opportunity to submit evidence concerning the question the District Court found that "(t)he Government's delay ha(d) not been explained or justified and (was) unnecessary and unreasonable." On appeal, the Court of Appeals concurred, noting that the District Court's determination was "supported by the evidence." 532 F.2d 59, 60-61 (CA8 1976). These concurrent findings of fact make it improper, in my judgment, for this Court to make its own determination that "the Government postponed action . . . to await the results of additional investigation," ante, at 796.1
29
That determination is not supported by the record.2 The majority opinion correctly points out that there was "no evidence concerning the reasons for delay in the record," and yet proceeds to accept as fact the representations in the Government's briefs to the Court of Appeals and to this Court that " 'the delay was caused by the government's efforts to identify persons in addition to respondent who may have participated in the offenses.' " Ibid. This finding of a continuing investigation, which forms the foundation of the majority opinion, comes from statements of counsel made during the appellate process. As we have said of other unsworn statements which were not part of the record and therefore could not have been considered by the trial court: "Manifestly, (such statements) cannot be properly considered by us in the disposition of (a) case." Adickes v. Kress & Co., 398 U.S. 144, 157-158, n. 16, 90 S.Ct. 1598, 1608, n. 16, 26 L.Ed.2d 142. While I do not question the good faith of Government counsel, it is not the business of appellate courts to make decisions on the basis of unsworn matter not incorporated in a formal record.
30
The findings of the District Court, as approved by the Court of Appeals, establish four relevant propositions: (1) this is a routine prosecution; (2) after the Government assembled all of the evidence on which it expects to establish respondent's guilt, it waited almost 18 months to seek an indictment; (3) the delay was prejudicial to respondent's defense; and (4) no reason whatsoever explains the delay. We may reasonably infer that the prosecutor was merely busy with other matters that he considered more important than this case.
31
The question presented by those facts is not an easy one. Nevertheless, unless we are to conclude that the Constitution imposes no constraints on the prosecutor's power to postpone the filing of formal charges to suit his own convenience, I believe we must affirm the judgment of the Court of Appeals. A contrary position "can be tenable only if one assumes that the constitutional right to a fair hearing includes no right whatsoever to a prompt hearing." Moody v. Daggett, 429 U.S. 78, 91, 97 S.Ct. 274, 281, 50 L.Ed.2d 236 (Stevens, J., dissenting). The requirement of speedy justice has been part of the Anglo-American common-law tradition since the Magna Carta. See id., at 92 n. 5, 97 S.Ct., at 281. It came to this country and was embodied in the early state constitutions, see the Massachusetts Constitution of 1780, Part I, Art. XI, and later in the Sixth Amendment to the United States Constitution. As applied to this case, in which respondent made numerous anxious inquiries of the Postal Inspectors concerning whether he would be indicted, in which the delay caused substantial prejudice to the respondent, and in which the Government has offered no justification for the delay, the right to speedy justice should be honored.
32
If that right is not honored in a case of this kind, the basic values which the Framers intended to protect by the Sixth Amendment's guarantee of a speedy trial, and which motivated Congress to enact the Speedy Trial Act of 1974, will become nothing more than managerial considerations for the prosecutor to manipulate.
33
I respectfully dissent.
1
The report indicated that the person to whom respondent admitted selling five guns had told Government agents that respondent had actually sold him eight guns which he, in turn, had sold to one Martin Koehnken. The report also indicated that Koehnken had sold three of these guns to undercover federal agents and that a search of his house had uncovered four others. Finally the report stated that the eighth gun was sold by one David Northdruft (or Northdurft) to Government agents, and that Northdruft claimed Koehnken had sold him the gun.
At the hearing on the motion to dismiss, respondent for the first time admitted that he had possessed and sold eight guns.
2
The only contrary evidence came from respondent's purchaser who told the Government investigators that he knew the guns were "hot."
3
In March 1975, the Inspector learned of another person who claimed to have purchased a gun from respondent. App. 18. At the hearing the parties disagreed as to whether this evidence would have been admissible since it did not involve any of the guns to which the indictment related. Id., at 9-10. In any event, the Assistant United States Attorney stated that the decision to prosecute was made before this additional piece of evidence was received. Id., at 19.
4
Respondent admitted that he had not mentioned Stewart to the Postal Inspector when he was questioned about his source of the guns. He explained that this was because Stewart "was a bad tomato" and "was liable to take a shot at me if I told (on) him." Id., at 13. Respondent also conceded that he did not mention either his brother's or Stewart's illness or death to the Postal Inspector on the several occasions in which respondent called the Inspector to inquire about the status of the probe.
5
The Inspector's report had stated that there was no evidence establishing the son's responsibility for the thefts.
6
The court unanimously reversed the dismissal of a fourth count of the indictment charging respondent with dealing in firearms without a license since respondent had not alleged that the missing witnesses could have provided exculpatory evidence on this charge.
7
In addition to challenging the Court of Appeals' holding on the constitutional issue, the United States argues that the District Court should have deferred action on the motion to dismiss until after trial, at which time it could have assessed any prejudice to the respondent in light of the events at trial. This argument, however, was not raised in the District Court or in the Court of Appeals. Absent exceptional circumstances, we will not review it here. See, e. g., Duignan v. United States, 274 U.S. 195, 200, 47 S.Ct. 566, 568, 71 L.Ed. 996 (1927); Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 330, 87 S.Ct. 1072, 1080, 18 L.Ed.2d 75 (1967).
At oral argument, the Government seemed to suggest that its failure to raise the procedural question in its brief in the Court of Appeals should be excused because the proceedings in that court were "skewed" by the fact that the District Court had based its dismissal solely on Fed.Rule Crim.Proc. 48(b), and because the issue was raised by the Government in its petition for rehearing. Tr. of Oral Arg. 7-8, 51. But even assuming that the basis for the District Court's dismissal could have "skewed" appellate proceedings regarding the procedural question, the fact is that the opening paragraph of the argument in the Government's brief below recognized that the only issue before the court was a due process question, and the remainder of the brief treated that question on the merits. And even after the Court of Appeals issued its decision based solely on the Due Process Clause, the Government's petition for rehearing did not squarely raise the procedural issue as an alternative ground for rehearing the case en banc.
8
Marion also holds that Fed.Rule Crim.Proc. 48(b), which permits district courts to dismiss indictments due to preindictment or postindictment delay, is "limited to post-arrest situations." 404 U.S., at 319, 92 S.Ct., at 462. Since respondent was not arrested until after he was indicted, the District Court plainly erred in basing its decision on this Rule.
9
ABA Code of Professional Responsibility DR 7-103(A) (1969); ABA Project on Standards for Criminal Justice, The Prosecution Function § 3.9 (App. Draft 1971).
10
To the extent that the period between accusation and trial has been strictly limited by legislative action, see, e. g., Speedy Trial Act of 1974, 88 Stat. 2076, 18 U.S.C. § 3161 et seq. (1970 ed., Supp. V), compelling immediate prosecutions upon probable cause would not add to the time during which defendants stand accused, but would create a risk of guilty persons escaping punishment simply because the Government was unable to move from probable cause to guilt beyond a reasonable doubt in the short time available to it. Even absent a statute, of course, the Speedy Trial Clause of the Sixth Amendment imposes restraints on the length of post-accusation delay.
11
Cf. United States v. Watson, 423 U.S. 411, 431, 96 S.Ct. 820, 831, 46 L.Ed.2d 598 (1976) (Powell, J., concurring) ("Good police practice often requires postponing an arrest, even after probable cause has been established, in order to place the suspect under surveillance or otherwise develop further evidence necessary to prove guilt to a jury").
12
Defendants also would be adversely affected by trials involving less than all of the criminal acts for which they are responsible, since they likely would be subjected to multiple trials growing out of the same transaction or occurrence.
13
See also Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966), quoted in United States v. Marion, 404 U.S., at 325 n. 18, 92 S.Ct., at 465 n. 18:
"There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction."
14
In addition, if courts were required to decide in every case when the prosecution should have commenced, it would be necessary for them to trace the day-by-day progress of each investigation. Maintaining daily records would impose an administrative burden on prosecutors, and reviewing them would place an even greater burden on the courts. See also United States v. Marion, supra, at 321 n. 13, 92 S.Ct., at 464.
15
See, e. g., The Prosecution Function, supra, n. 9, at § 3.9(b):
"The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that evidence may exist which would support a conviction. Illustrative of the factors which the prosecutor may properly consider in exercising his discretion are:
"(i) the prosecutor's reasonable doubt that the accused is in fact guilty;
"(ii) the extent of the harm caused by the offense;
"(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender;
"(iv) possible improper motives of a complainant;
"(v) reluctance of the victim to testify;
"(vi) cooperation of the accused in the apprehension or conviction of others;
"(vii) availability and likelihood of prosecution by another jurisdiction."
16
Of course, in this case further investigation proved unavailing and the United States Attorney ultimately decided to prosecute based solely on the Inspector's report. But this fortuity cannot transform an otherwise permissible delay into an impermissible one.
17
In Marion we noted with approval that the Government conceded that a "tactical" delay would violate the Due Process Clause. The Government renews that concession here, Brief for United States 32, and expands it somewhat by stating: "A due process violation might also be made out upon a showing of prosecutorial delay incurred in reckless disregard of circumstances, known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense," id., at 32-33, n. 25. As the Government notes, however, there is no evidence of recklessness here.
18
See also Pet. for Cert. 4, 8; Brief for United States 3, 8, 38; Tr. of Oral Arg. 4, 7, 10, 47.
19
Professor Amsterdam has catalogued some of the noninvestigative reasons for delay:
"(P)roof of the offense may depend upon the testimony of an undercover informer who maintains his 'cover' for a period of time before surfacing to file charges against one or more persons with whom he has dealt while disguised. . . . (I)f there is more than one possible charge against a suspect, some of them may be held back pending the disposition of others, in order to avoid the burden upon the prosecutor's office of handling charges that may turn out to be unnecessary to obtain the degree of punishment that the prosecutor seeks. There are many other motives for delay, of course, including some sinister ones, such as a desire to postpone the beginning of defense investigation, or the wish to hold a 'club' over the defendant.
"Additional reasons for delay may be partly or completely beyond the control of the prosecuting authorities. Offenses may not be immediately reported; investigation may not immediately identify the offender; an identified offender may not be immediately apprehendable. . . . (A)n indictment may be delayed for weeks or even months until the impaneling of the next grand jury. It is customary to think of these delays as natural and inevitable . . . but various prosecutorial decisions such as the assignment of manpower and priorities among investigations of known offenses may also affect the length of such delays." Speedy Criminal Trial: Rights and Remedies, 27 Stan.L.Rev. 525, 527-728 (1975).
See also Dickey v. Florida, 398 U.S. 30, 45-46, n. 9, 90 S.Ct. 1564, 1572-1573, 26 L.Ed.2d 26 (1970) (BRENNAN, J., concurring).
1
It is a settled rule of this Court that we will not review concurrent findings of fact by two courts " 'in the absence of a very obvious and exceptional showing of error.' " Berenyi v. Immigration Director, 385 U.S. 630, 635, 87 S.Ct. 666, 670, 17 L.Ed.2d 656, citing Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275, 69 S.Ct. 535, 537, 93 L.Ed. 672. Mr. Justice Jackson has called this a "seasoned and wise rule . . . ." Comstock v. Group of Investors, 335 U.S. 211, 214, 68 S.Ct. 1454, 1456, 92 L.Ed. 1911.
2
An examination of the transcript of the District Court hearing reveals that the Government produced no evidence as to why the indictment was delayed. The Government stipulated that it proceeded before the grand jury only on evidence collected some 17 months before the presentation and that no additional evidence had caused it to proceed. Although the Court of Appeals surmised that "(n)o reason existed for the delay except a hope on the part of the Government that others might be discovered who may have participated in the theft(s) . . .," 532 F.2d, at 61, even this assumption is not borne out by the record of the District Court hearing. Although not under oath, the prosecuting attorney indicated that the Government theorized that the guns in question came from the respondent's son, who worked at a freight terminal and would have had access to the mails. Yet even this theory was never shown to be the cause of the delay. Not even the prosecuting attorney stated as much.
| 01
|
431 U.S. 678
97 S.Ct. 2010
52 L.Ed.2d 675
Hugh CAREY, etc., et al., Appellants,v.POPULATION SERVICES INTERNATIONAL et al.
No. 75-443.
Argued Jan. 10, 1977.
Decided June 9, 1977.
Syllabus
Section 6811(8) of the New York Education Law makes it a crime (1) for any person to sell or distribute any contraceptive of any kind to a minor under 16; (2) for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or over; and (3) for anyone, including licensed pharmacists, to advertise or display contraceptives. In appellees' action against appellant state officials challenging the constitutionality of § 6811(8), a three-judge District Court declared the statute unconstitutional in its entirety under the First and Fourteenth Amendments insofar as it applies to nonprescription contraceptives, and enjoined its enforcement as so applied. Held : The judgment is affirmed. Pp. 682-703; 707-708; 713-716.
D.C., 398 F.Supp. 321, affirmed.
Mr. Justice BRENNAN delivered the opinion of the Court with respect to Parts I, II, III, and V, finding that:
1
1. Appellee Population Planning Associates (PPA), a corporation that makes mail-order sales of nonmedical contraceptive devices from its North Carolina offices and regularly advertises its products in New York periodicals and fills mail orders from New York residents without limiting availability of the products to persons of any particular age, has the requisite standing to maintain the action not only in its own right but also on behalf of its potential customers, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 51 L.Ed.2d 397, and therefore there is no occasion to decide the standing of the other appellees. Pp. 682-684.
2
2. Regulations imposing a burden on a decision as fundamental as whether to bear or beget a child may be justified only by compelling state interests, and must be narrowly drawn to express only those interests. Pp. 684-686.
3
3. The provision prohibiting distribution of nonmedical contraceptives to persons 16 or over except through licensed pharmacists clearly burdens the right of such individuals to use contraceptives if they so desire, and the provision serves no compelling state interests. It cannot be justified by an interest in protecting health insofar as it applies to nonhazardous contraceptives or in protecting potential life, nor can it be justified by a concern that young people not sell contraceptives, or as being designed to serve as a quality control device or as facilitating enforcement of the other provisions of the statute. Pp. 686-691.
4
4. The prohibition of any advertisement or display of contraceptives that seeks to suppress completely any information about the availability and price of contraceptives cannot be justified on the ground that advertisements of contraceptive products would offend and embarrass those exposed to them and that permitting them would legitimize sexual activity of young people. These are classically not justifications validating suppression of expression protected by the First Amendment, and here the advertisements in question merely state the availability of products that are not only entirely legal but constitutionally protected. Pp. 700-702.
5
Mr. Justice BRENNAN, joined by Mr. Justice STEWART, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN, concluded in Part IV that the provision prohibiting distribution of contraceptives to persons under 16, as applied to nonprescription contraceptives, cannot be justified as a permissible regulation of minors' morality in furtherance of the State's policy against promiscuous sexual intercourse among the young. Pp. 691-699.
6
(a) The right to privacy in connection with decisions affecting procreation extends to minors as well as to adults, and since a State may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788, the constitutionality of a blanket prohibition of the distribution of contraceptives to minors is a fortiori foreclosed. Pp. 693-694.
7
(b) The argument that sexual activity may be deterred by increasing the hazards attendant on it has been rejected by the Court as a justification for restrictions on the freedom to choose whether to bear or beget a child. Eisenstadt v. Baird, 405 U.S. 438, 448, 92 S.Ct. 1029, 1035, 31 L.Ed.2d 349; Roe v. Wade, 410 U.S. 113, 148, 93 S.Ct. 705, 724, 35 L.Ed.2d 147. Moreover, there is substantial doubt whether limiting access to contraceptives will in fact substantially discourage early sexual behavior. When a State, as here, burdens the exercise of a fundamental right, its attempt to justify that burden as a rational means for the accomplishment of some state policy requires more than the unsupported assertion (appellants here having conceded that there is no evidence that teenage extramarital sexual activity increases in proportion to the availability of contraceptives) that the burden is connected to such a policy. Pp. 694-696.
8
(c) That under another provision of the statute a minor under 16 may be supplied with a contraceptive by a physician does not save the challenged provision, especially where appellants asserted no medical necessity for imposing a limitation on the distribution of nonprescription contraceptives to minors. Pp. 697-699.
9
Mr. Justice WHITE concluded that the prohibition against distribution of contraceptives to persons under 16 cannot be justified primarily because the State has not demonstrated that such prohibition measurably contributes to the deterrent purposes that the State advances as justification. Pp. 702-703.
10
Mr. Justice POWELL concluded that the prohibition against distribution of contraceptives to persons under 16 is defective both because it infringes the privacy interests of married females between the ages of 14 and 16 and because it prohibits parents from distributing contraceptives to their children, thus unjustifiably interfering with parental interests in rearing children. Pp. 707-708.
11
Mr. Justice STEVENS concluded that the prohibition against distribution of contraceptives to persons under 16 denies such persons and their parents a choice which, if available, would reduce exposure to venereal disease or unwanted pregnancy, and that the prohibition cannot be justified as a means of discouraging sexual activity by minors. Pp. 713-716.
12
D.C., 398 F.Supp. 321, affirmed.
13
Arlene R. Silverman, New York City, for appellants.
14
Michael N. Pollet, New York City, for appellees.
15
Mr. Justice BRENNAN delivered the opinion of the Court (Parts I, II, III, and V), together with an opinion (Part IV), in which Mr. Justice STEWART, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN joined.
16
Under New York Ed. Law § 6811(8) (McKinney 1972) it is a crime (1) for any person to sell or distribute any contraceptive of any kind to a minor under the age of 16 years; (2) for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or over; and (3) for anyone, including licensed pharmacists, to advertise or display contraceptives.1 A three-judge District Court for the Southern District of New York declared § 6811(8) unconstitutional in its entirety under the First and Fourteenth Amendments of the Federal Constitution insofar as it applies to nonprescription contraceptives, and enjoined its enforcement as so applied. 398 F.Supp. 321 (1975). We noted probable jurisdiction, 426 U.S. 918, 96 S.Ct. 2621, 49 L.Ed.2d 371 (1976). We affirm.
17
* We must address a preliminary question of the standing of the various appellees to maintain the action. We conclude that appellee Population Planning Associates, Inc. (PPA) has the requisite standing and therefore have no occasion to decide the standing of the other appellees.2
18
PPA is a corporation primarily engaged in the mail-order retail sale of nonmedical contraceptive devices from its offices in North Carolina. PPA regularly advertises its products in periodicals published or circulated in New York, accepts orders from New York residents, and fills orders by mailing contraceptives to New York purchasers. Neither the advertisements nor the order forms accompanying them limit availability of PPA's products to persons of any particular age.
19
Various New York officials have advised PPA that its activities violate New York law. A letter of December 1, 1971, notified PPA that a PPA advertisement in a New York college newspaper violated § 6811(8), citing each of the three challenged provisions, and requested "future compliance" with the law. A second letter, dated February 23, 1973, notifying PPA that PPA's magazine advertisements of contraceptives violated the statute, referred particularly to the provisions prohibiting sales to minors and sales by nonpharmacists, and threatened: "In the event you fail to comply, the matter will be referred to our Attorney General for legal action." Finally, PPA was served with a copy of a report of inspectors of the State Board of Pharmacy, dated September 4, 1974, which recorded that PPA advertised male contraceptives, and had been advised to cease selling contraceptives in violation of the state law.
20
That PPA has standing to challenge § 6811(8), not only in its own right but also on behalf of its potential customers, is settled by Craig v. Boren, 429 U.S. 190, 192-197, 97 S.Ct. 451, 454-456, 51 L.Ed.2d 397 (1976). Craig held that a vendor of 3.2% beer had standing to challenge in its own right and as advocate for the rights of third persons, the gender-based discrimination in a state statute that prohibited sale of the beer to men, but not to women, between the ages of 18 and 21. In this case, as did the statute in Craig, § 6811(8) inflicts on the vendor PPA "injury in fact" that satisfies Art. III's case-or-controversy requirement, since "(t)he legal duties created by the statutory sections under challenge are addressed directly to vendors such as (PPA. It) is obliged either to heed the statutory (prohibition), thereby incurring a direct economic injury through the constriction of (its) market, or to disobey the statutory command and suffer" legal sanctions. 429 U.S., at 194, 97 S.Ct., at 455.3 Therefore, PPA is among the "vendors and those in like positions (who) have been uniformly permitted to resist efforts at restricting their operations by acting as advocates for the rights of third parties who seek access to their market or function." Id., at 195, 97 S.Ct., at 456. See also Eisenstadt v. Baird, 405 U.S. 438, 443-446, 92 S.Ct. 1029, 1033-1035, 31 L.Ed.2d 349 (1972); Sullivan v. Little Hunting Park, 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969); Barrows v. Jackson, 346 U.S. 249, 257-260, 73 S.Ct. 1031, 1035-1037, 97 L.Ed. 1586 (1953). As such, PPA "is entitled to assert those concomitant rights of third parties that would be 'diluted or adversely affected' should (its) constitutional challenge fail." Craig v. Boren, supra, at 195, 97 S.Ct., at 455, quoting Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 1679, 14 L.Ed.2d 510 (1965).4
II
21
Although "(t)he Constitution does not explicitly mention any right of privacy," the Court has recognized that one aspect of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment is "a right of personal privacy, or a guarantee of certain areas or zones of privacy." Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). This right of personal privacy includes "the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions "relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454, 92 S.Ct. at 1038-1039; id., at 460, 463-465, 92 S.Ct. at 1042, 1043-1044 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, (262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923))." Roe v. Wade, supra, at 152-153, 93 S.Ct., at 726. See also Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 796-797, 39 L.Ed.2d 52 (1974).
22
The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices. That decision holds a particularly important place in the history of the right of privacy, a right first explicitly recognized in an opinion holding unconstitutional a statute prohibiting the use of contraceptives, Griswold v. Connecticut, supra, and most prominently vindicated in recent years in the contexts of contraception, Griswold v. Connecticut, supra; Eisenstadt v. Baird, supra; and abortion, Roe v. Wade, supra; Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). This is understandable, for in a field that by definition concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive. "If the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, supra, 405 U.S., at 453, 92 S.Ct., at 1038. (Emphasis omitted.)
23
That the constitutionally protected right of privacy extends to an individual's liberty to make choices regarding contraception does not, however, automatically invalidate every state regulation in this area. The business of manufacturing and selling contraceptives may be regulated in ways that do not infringe protected individual choices. And even a burdensome regulation may be validated by a sufficiently compelling state interest. In Roe v. Wade, for example, after determining that the "right of privacy . . . encompass(es) a woman's decision whether or not to terminate her pregnancy," 410 U.S., at 153, 93 S.Ct., at 727, we cautioned that the right is not absolute, and that certain state interests (in that case, "interests in safeguarding health, in maintaining medical standards, and in protecting potential life") may at some point "become sufficiently compelling to sustain regulation of the factors that govern the abortion decision." Id., at 154, 93 S.Ct., at 727. "Compelling" is of course the key word; where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests. Id., at 155-156, 93 S.Ct., at 727-728, and cases there cited.
24
With these principles in mind, we turn to the question whether the District Court was correct in holding invalid the provisions of § 6811(8) as applied to the distribution of nonprescription contraceptives.
III
25
We consider first the wider restriction on access to contraceptives created by § 6811(8)'s prohibition of the distribution of nonmedical contraceptives to adults except through licensed pharmacists.
26
Appellants argue that this Court has not accorded a "right of access to contraceptives" the status of a fundamental aspect of personal liberty. They emphasize that Griswold v. Connecticut, struck down a state prohibition of the use of contraceptives, and so had no occasion to discuss laws "regulating their manufacture or sale." 381 U.S., at 485, 85 S.Ct., at 1682. Eisenstadt v. Baird, was decided under the Equal Protection Clause, holding that "whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike." 405 U.S., at 453, 92 S.Ct., at 1038. Thus appellants argue that neither case should be treated as reflecting upon the State's power to limit or prohibit distribution of contraceptives to any persons, married or unmarried. But see id., at 463-464, 92 S.Ct., at 1043-1044 (White, J., concurring in result).
27
The fatal fallacy in this argument is that it overlooks the underlying premise of those decisions that the Constitution protects "the right of the individual . . . to be free from unwarranted governmental intrusion into . . . the decision whether to bear or beget a child." Id., at 453, 92 S.Ct., at 1038. Griswold did state that by "forbidding the use of contraceptives rather than regulating their manufacture or sale," the Connecticut statute there had "a maximum destructive impact" on privacy rights. 381 U.S., at 485, 85 S.Ct., at 1682. This intrusion into "the sacred precincts of marital bedrooms" made that statute particularly "repulsive." Id., at 485-486, 85 S.Ct., at 1682. But subsequent decisions have made clear that the constitutional protection of individual autonomy in matters of childbearing is not dependent on that element. Eisenstadt v. Baird, holding that the protection is not limited to married couples, characterized the protected right as the "decision whether to bear or beget a child." 405 U.S., at 453, 92 S.Ct., at 1038 (emphasis added). Similarly, Roe v. Wade, held that the Constitution protects "a woman's decision whether or not to terminate her pregnancy." 410 U.S., at 153, 93 S.Ct., at 727 (emphasis added). See also Whalen v. Roe, supra, 429 U.S., at 599-600, 97 S.Ct., at 876-877, and n. 26. These decisions put Griswold in proper perspective. Griswold may no longer be read as holding only that a State may not prohibit a married couple's use of contraceptives. Read in light of its progeny, the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State.
28
Restrictions on the distribution of contraceptives clearly burden the freedom to make such decisions. A total prohibition against sale of contraceptives, for example, would intrude upon individual decisions in matters of procreation and contraception as harshly as a direct ban on their use. Indeed, in practice, a prohibition against all sales, since more easily and less offensively enforced, might have an even more devastating effect upon the freedom to choose contraception. Cf. Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961).
29
An instructive analogy is found in decisions after Roe v. Wade, supra, that held unconstitutional statutes that did not prohibit abortions outright but limited in a variety of ways a woman's access to them. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). See also Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975). The significance of these cases is that they establish that the same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely. Both types of regulation "may be justified only by a 'compelling state interest' . . . and . . . must be narrowly drawn to express only the legitimate state interests at stake." Roe v. Wade, supra, 410 U.S., at 155, 93 S.Ct., at 728.5 See also Eisenstadt v. Baird, 405 U.S., at 463, 92 S.Ct., at 1043 (White, J., concurring in result). This is so not because there is an independent fundamental "right of access to contraceptives," but because such access is essential to exercise of the constitutionally protected right of decision in matters of childbearing that is the underlying foundation of the holdings in Griswold, Eisenstadt v. Baird, and Roe v. Wade.
30
Limiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives if they choose to do so. Eisenstadt v. Baird, supra, at 461-464, 92 S.Ct., at 1042-1044 (White, J., concurring in result). The burden is, of course, not as great as that under a total ban on distribution. Nevertheless, the restriction of distribution channels to a small fraction of the total number of possible retail outlets renders contraceptive devices considerably less accessible to the public, reduces the opportunity for privacy of selection and purchase,6 and lessens the possibility of price competition.7 Cf. Griswold v. Connecticut, 381 U.S., at 503, 85 S.Ct., at 1691 (White, J., concurring in judgment). Of particular relevance here is Doe v. Bolton, supra, in which the Court struck down, as unconstitutionally burdening the right of a woman to choose abortion, a statute requiring that abortions be performed only in accredited hospitals, in the absence of proof that the requirement was substantially related to the State's interest in protecting the patient's health. 410 U.S., at 193-195, 93 S.Ct., at 748-749. The same infirmity infuses the limitation in § 6811(8). "Just as in Griswold, where the right of married persons to use contraceptives was 'diluted or adversely affected' by permitting a conviction for giving advice as to its exercise, . . . so here, to sanction a medical restriction upon distribution of a contraceptive not proved hazardous to health would impair the exercise of the constitutional right." Eisenstadt v. Baird, 405 U.S., at 464, 92 S.Ct., at 1043 (White, J., concurring in result).
31
There remains the inquiry whether the provision serves a compelling state interest. Clearly "interests . . . in maintaining medical standards, and in protecting potential life," Roe v. Wade, 410 U.S., at 154, 93 S.Ct., at 727, cannot be invoked to justify this statute. Insofar as § 6811(8) applies to nonhazardous contraceptives,8 it bears no relation to the State's interest in protecting health. Eisenstadt v. Baird, supra, at 450-452, 463-464, 92 S.Ct., at 1036-1038, 1043-1044 (White, J., concurring in result).9 Nor is the interest in protecting potential life implicated in state regulation of contraceptives. Roe v. Wade, supra, at 163-164, 93 S.Ct., at 731-732.
32
Appellants therefore suggest that § 6811(8) furthers other state interests. But none of them is comparable to those the Court has heretofore recognized as compelling. Appellants argue that the limitation of retail sales of nonmedical contraceptives to pharmacists (1) expresses "a proper concern that young people not sell contraceptives"; (2) "allows purchasers to inquire as to the relative qualities of the varying products and prevents anyone from tampering with them"; and (3) facilitates enforcement of the other provisions of the statute. Brief for Appellants 14. The first hardly can justify the statute's incursion into constitutionally protected rights, and in any event the statute is obviously not substantially related to any goal of preventing young people from selling contraceptives.10 Nor is the statute designed to serve as a quality control device. Nothing in the record suggests that pharmacists are particularly qualified to give advice on the merits of different nonmedical contraceptives, or that such advice is more necessary to the purchaser of contraceptive products than to consumers of other nonprescription items. Why pharmacists are better able or more inclined than other retailers to prevent tampering with prepackaged products, or, if they are, why contraceptives are singled out for this special protection, is also unexplained.11 As to ease of enforcement, the prospect of additional administrative inconvenience has not been thought to justify invasion of fundamental constitutional rights. See, e. g., Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
IV12
33
The District Court also held unconstitutional, as applied to nonprescription contraceptives, the provision of § 6811(8) prohibiting the distribution of contraceptives to those under 16 years of age.13 Appellants contend that this provision of the statute is constitutionally permissible as a regulation of the morality of minors, in furtherance of the State's policy against promiscuous sexual intercourse among the young.
34
The question of the extent of state power to regulate conduct of minors not constitutionally regulable when committed by adults is a vexing one, perhaps not susceptible of precise answer. We have been reluctant to attempt to define "the totality of the relationship of the juvenile and the state." In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967). Certain principles, however, have been recognized. "Minors, as well as adults, are protected by the Constitution and possess constitutional rights." Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 74, 96 S.Ct., at 2843. "(W)hatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." In re Gault, supra, 387 U.S., at 13, 87 S.Ct., at 1436.14 On the other hand, we have held in a variety of contexts that "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults." Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645 (1944). See Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). See also McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).
35
Of particular significance to the decision of this case, the right to privacy in connection with decisions affecting procreation extends to minors as well as to adults. Planned Parenthood of Central Missouri v. Danforth, supra, held that a State "may not impose a blanket provision . . . requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy." 428 U.S., at 74, 96 S.Ct., at 2843. As in the case of the spousal-consent requirement struck down in the same case, id., at 67-72, 96 S.Ct., at 2831 "the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto," id., at 74, 96 S.Ct., at 2843, " 'which the state itself is absolutely and totally prohibited from exercising.' " Id., at 69, 96 S.Ct., at 2841. State restrictions inhibiting privacy rights of minors are valid only if they serve "any significant state interest . . . that is not present in the case of an adult." Id., at 75, 96 S.Ct., at 2844.15 Planned Parenthood found that no such interest justified a state requirement of parental consent.16
36
Since the State may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, the constitutionality of a blanket prohibition of the distribution of contraceptives to minors is a fortiori foreclosed. The State's interests in protection of the mental and physical health of the pregnant minor, and in protection of potential life are clearly more implicated by the abortion decision than by the decision to use a nonhazardous contraceptive.
37
Appellants argue, however, that significant state interests are served by restricting minors' access to contraceptives, because free availability to minors of contraceptives would lead to increased sexual activity among the young, in violation of the policy of New York to discourage such behavior.17 The argument is that minors' sexual activity may be deterred by increasing the hazards attendant on it. The same argument, however, would support a ban on abortions for minors, or indeed support a prohibition on abortions, or access to contraceptives, for the unmarried, whose sexual activity is also against the public policy of many States. Yet, in each of these areas, the Court has rejected the argument, noting in Roe v. Wade, that "no court or commentator has taken the argument seriously." 410 U.S., at 148, 93 S.Ct., at 724. The reason for this unanimous rejection was stated in Eisenstadt v. Baird : "It would be plainly unreasonable to assume that (the State) has prescribed pregnancy and the birth of an unwanted child (or the physical and psychological dangers of an abortion) as punishment for fornication." 405 U.S., at 448, 92 S.Ct., at 1036. We remain reluctant to attribute any such "scheme of values" to the State.18
38
Moreover, there is substantial reason for doubt whether limiting access to contraceptives will in fact substantially discourage early sexual behavior. Appellants themselves conceded in the District Court that "there is no evidence that teenage extramarital sexual activity increases in proportion to the availability of contraceptives," 398 F.Supp., at 332, and n.10, and accordingly offered none, in the District Court or here. Appellees, on the other hand, cite a considerable body of evidence and opinion indicating that there is no such deterrent effect.19 Although we take judicial notice, as did the District Court, id., at 331-333, that with or without access to contraceptives, the incidence of sexual activity among minors is high,20 and the consequences of such activity are frequently devastating,21 the studies cited by appellees play no part in our decision. It is enough that we again confirm the principle that when a State, as here, burdens the exercise of a fundamental right, its attempt to justify that burden as a rational means for the accomplishment of some significant state policy requires more than a bare assertion, based on a conceded complete absence of supporting evidence, that the burden is connected to such a policy.22
B
39
Appellants argue that New York does not totally prohibit distribution of contraceptives to minors under 16, and that accordingly § 6811(8) cannot be held unconstitutional. Although § 6811(8) on its fact is a flat unqualified prohibition, Ed. Law § 6807(b) (McKinney, Supp. 1976-1977), see nn.1, 7, and 13, supra, provides that nothing in Education Law §§ 6800-6826 shall be construed to prevent "(a)ny physician . . . from supplying his patients with such drugs as (he) . . . deems proper in connection with his practice." This narrow exception, however, does not save the statute. As we have held above as to limitations upon distribution to adults, less than total restrictions on access to contraceptives that significantly burden the right to decide whether to bear children must also pass constitutional scrutiny. Appellants assert no medical necessity for imposing a medical limitation on the distribution of nonprescription contraceptives to minors. Rather, they argue that such a restriction serves to emphasize to young people the seriousness with which the State views the decision to engage in sexual intercourse at an early stage.23 But this is only another form of the argument that juvenile sexual conduct will be deterred by making contraceptives more difficult to obtain. Moreover, that argument is particularly poorly suited to the restriction appellants are attempting to justify, which on appellants' construction delegates the State's authority to disapprove of minors' sexual behavior to physicians, who may exercise it arbitrarily,24 either to deny contraceptives to young people, or to undermine the State's policy of discouraging illicit early sexual behavior. This the State may not do. Cf. Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 69, 74, 96 S.Ct., at 2841, 2843.25
V
40
The District Court's holding that the prohibition of any "advertisement or display" of contraceptives is unconstitutional was clearly correct. Only last Term Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), held that a State may not "completely suppress the dissemination of concededly truthful information about entirely lawful activity," even when that information could be categorized as "commercial speech." Id., at 773, 96 S.Ct., at 1831. Just as in that case, the statute challenged here seeks to suppress completely any information about the availability and price of contraceptives.26 Nor does the case present any question left open in Virginia Pharmacy Bd. ; here, as there, there can be no contention that the regulation is "a mere time, place, and manner restriction," id., at 771, 96 S.Ct., at 1830, or that it prohibits only misleading or deceptive advertisements, ibid., or "that the transactions proposed in the forbidden advertisements are themselves illegal in any way. Cf. Pittsburgh Press Co. v. Pittsburgh Human Relations Comm'n, (413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973))." Id., at 772-773, 96 S.Ct., at 1831. Moreover, in addition to the "substantial individual and societal interests" in the free flow of commercial information enumerated in Virginia Pharmacy Bd., supra, at 763-766, 96 S.Ct., at 1817, the information suppressed by this statute "related to activity with which, at least in some respects, the State could not interfere." 425 U.S., at 760, 96 S.Ct., at 1825. Cf. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).
41
Appellants contend that advertisements of contraceptive products would be offensive and embarrassing to those exposed to them, and that permitting them would legitimize sexual activity of young people. But these are classically not justifications validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression. See, e. g., Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).27 As for the possible "legitimation" of illicit sexual behavior, whatever might be the case if the advertisements directly incited illicit sexual activity among the young, none of the advertisements in this record can even remotely be characterized as "directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). They merely state the availability of products and services that are not only entirely legal, cf. Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973), but constitutionally protected. Cf. Bigelow v. Virginia, supra.28 These arguments therefore do not justify the total suppression of advertising concerning contraceptives.29
42
Affirmed.
43
THE CHIEF JUSTICE dissents.
44
Mr. Justice WHITE, concurring in part and concurring in the result.
45
I join Parts I, III, and V of the Court's opinion and concur in the result with respect to Part IV.*
46
Although I saw no reason in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), to reach "the novel constitutional question whether a State may restrict or forbid the distribution of contraceptives to the unmarried," id., at 465, 92 S.Ct., at 1044 (concurring in result), four of the seven Justices participating in that case held that in this respect the rights of unmarried persons were equal to those of the married. Given Eisenstadt and given the decision of the Court in the abortion case, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the result reached by the Court in Part III of its opinion appears warranted. I do not regard the opinion, however, as declaring unconstitutional any state law forbidding extramarital sexual relations. On this assumption I join Part III.
47
I concur in the result in Part IV primarily because the State has not demonstrated that the prohibition against distribution of contraceptives to minors measurably contributes to the deterrent purposes which the State advances as justification for the restriction. Again, however, the legality of state laws forbidding premarital intercourse is not at issue here; and, with Mr. Justice STEVENS, "I would describe as 'frivolous' appellee's argument that a minor has the constitutional right to put contraceptives to their intended use, notwithstanding the combined objection of both parents and the State," post, at 713.
48
In joining Part V of the Court's opinion, I should also say that I agree with the views of Mr. Justice STEVENS expressed in Part II of his separate opinion.
49
Mr. Justice POWELL, concurring in part and concurring in the judgment.
50
I agree that Population Planning Associates has standing to maintain this action, and therefore join Part I of the Court's opinion. Although I concur in the judgment of the Court, I am not persuaded that the Constitution requires the severe constraints that the Court's opinion places upon legislative efforts to regulate the distribution of contraceptives, particularly to the young.
51
* The Court apparently would subject all state regulation affecting adult sexual relations to the strictest standard of judicial review. Under today's decision, such regulation "may be justified only by compelling state interests, and must be narrowly drawn to express only those interests." Ante, at 686. Even regulation restricting only the sexual activity of the young must now be justified by a "significant state interest," a standard that is "apparently less rigorous" than the standard the Court would otherwise apply. Ante, at 693 n. 15. In my view, the extraordinary protection the Court would give to all personal decisions in matters of sex is neither required by the Constitution nor supported by our prior decisions.
A.
52
The cases on which the Court relies for its "compelling interest" standard do not support the sweeping principle it adopts today. Those cases generally involved direct and substantial interference with constitutionally protected rights. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Court invalidated a state statute prohibiting the use of contraceptives and making it illegal for physicians to give advice to married persons regarding contraception. The statute was viewed as one "operat(ing) directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation," id., at 482, 85 S.Ct., at 1680, and "seek(ing) to achieve its goals by means having a maximum destructive impact upon that relationship," id., at 485, 85 S.Ct., at 1682. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Court reviewed a Texas statute imposing severe criminal sanctions on physicians and other medical personnel who performed nontherapeutic abortions, thus effectively foreclosing the availability and safety of this desired service. And just last Term, in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), we invalidated Missouri's requirement of spousal consent as a state-imposed "absolute obstacle to a woman's decision that Roe held to be constitutionally protected from such interference." Id., at 71 n. 11, 96 S.Ct., at 2842.
53
The Court relies on Planned Parenthood, supra, and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), for the proposition that "the same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely." Ante, at 688. But neither of those cases refers to the "compelling state interest" test. In Bolton, the Court invalidated procedural requirements of the Georgia abortion statute that were found not "reasonably related" to the asserted legislative purposes or to the "patient's needs." 410 U.S., at 194, 199, 93 S.Ct., at 748, 751. Planned Parenthood involved in addition to the "absolute obstacle" referred to above the Missouri requirement of prior written consent by the pregnant woman. Despite the fact that Missouri normally did not require written consent for other surgical procedures, the Court sustained this regulation without requiring any demonstration of compelling state interests. The Court recognized that the decision to abort "is an important, and often a stressful one," and the State thus constitutionally could assure that the woman was aware of the significance of the decision. 428 U.S., at 67, 96 S.Ct., at 2840.
54
In sum, the Court quite unnecessarily extends the reach of cases like Griswold and Roe. Neither our precedents nor sound principles of constitutional analysis require state legislation to meet the exacting "compelling state interest" standard whenever it implicates sexual freedom. In my view, those cases make clear that that standard has been invoked only when the state regulation entirely frustrates or heavily burdens the exercise of constitutional rights in this area. See Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976). This is not to say that other state regulation is free from judicial review. But a test so severe that legislation rarely can meet it should be imposed by courts with deliberate restraint in view of the respect that properly should be accorded legislative judgments.
B
55
There is also no justification for subjecting restrictions on the sexual activity of the young to heightened judicial review. Under our prior cases, the States have broad latitude to legislate with respect to adolescents. The principle is well settled that "a State may permissibly determine that, at least in some precisely delineated areas, a child . . . is not possessed of that full capacity for individual choice" which is essential to the exercise of various constitutionally protected interests. Ginsberg v. New York, 390 U.S. 629, 649-650, 88 S.Ct. 1274, 1285-1286, 20 L.Ed.2d 195 (1968) (Stewart, J., concurring in result). This principle is the premise of our prior decisions, ostensibly reaffirmed by the plurality, ante, at 692, holding that "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults." Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645 (1944). Restraints on the freedom of minors may be justified "even though comparable restraints on adults would be constitutionally impermissible." Planned Parenthood of Central Missouri v. Danforth, supra, 428 U.S., at 102, 96 S.Ct., at 2856 (Stevens, J., concurring in part and dissenting in part).1
56
New York has exercised its responsibility over minors in areas falling within the "cluster of constitutionally protected choices" relating to sex and marriage. Ante, at 685. It has set an age limitation below which persons cannot marry without parental consent, N.Y.Dom.Rel. Law §§ 15, 15-a (McKinney 1964 and Supp. 1976-1977), and has established by statute the age at which a minor is legally recognized as having the capacity to consent to sexual activity, Penal Law § 130.05(3)(a) (McKinney 1975). See also Penal Law §§ 130.25, 130.30, 130.35 (McKinney 1975). These provisions highlight the State's concern that its juvenile citizens generally lack the maturity and understanding necessary to make decisions concerning marriage and sexual relationships.
57
Until today, I would not have thought it was even arguably necessary to review state regulation of this sort under a standard that for all practical purposes approaches the "compelling state interest" standard. At issue in Ginsberg v. New York, supra, for example, was the question of the constitutionality on its face of a New York criminal obscenity statute which prohibited the sale to minors of material defined to be obscene on the basis of its appeal to them whether or not it would be obscene to adults. The Court recognized that "the State has an interest 'to protect the welfare of children' and to see that they are 'safeguarded from abuses' which might prevent their 'growth into free and independent well-developed men and citizens.' " 390 U.S., at 640-641, 88 S.Ct., at 1281, quoting Prince v. Massachusetts, supra, 321 U.S, at 165, 64 S.Ct., at 441. Consequently, the "only question remaining" in that case was "whether the New York Legislature might rationally conclude, as it has, that exposure to the materials proscribed by (the statute) constitutes such an 'abuse.' " 390 U.S., at 641, 88 S.Ct., at 1281. Similarly, the relevant question in any case where state laws impinge on the freedom of action of young people in sexual matters is whether the restriction rationally serves valid state interests.
II
58
With these considerations in mind, I turn to the specific provisions of the New York statute limiting the distribution of contraceptives.
A.
59
New York has made it a crime for anyone other than a physician to sell or distribute contraceptives to minors under the age of 16 years. Ed. Law § 6811(8) (McKinney 1972). This element of New York's program of regulation for the protection of its minor citizens is said to evidence the State's judgment that the health and well-being of minors would be better assured if they are not encouraged to engage in sexual intercourse without guidance. Although I have no doubt that properly framed legislation serving this purpose would meet constitutional standards, the New York provision is defective in two respects. First, it infringes the privacy interests of married females between the ages of 14 and 16, see ante, at 695 n. 18, in that it prohibits the distribution of contraceptives to such females except by a physician. In authorizing marriage at that age, the State also sanctions sexual intercourse between the partners and expressly recognizes that once the marriage relationship exists the husband and wife are presumed to possess the requisite understanding and maturity to make decisions concerning sex and procreation. Consequently, the state interest that justifies a requirement of prior counseling with respect to minors in general simply is inapplicable with respect to minors for whom the State has affirmatively approved marriage.
60
Second, this provision prohibits parents from distributing contraceptives to their children, a restriction that unjustifiably interferes with parental interests in rearing their children. Cf. Ginsberg v. New York, 390 U.S., at 639, and n. 7, 88 S.Ct., at 1280 and n. 7. "(C)onstitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' " Ibid., quoting Prince v. Massachusetts, supra, 321 U.S., at 166, 64 S.Ct., at 442. See Wisconsin v. Yoder, 406 U.S. 205, 231-233, 92 S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573-574, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S.Ct. 625, 626-627, 69 L.Ed. 1042 (1923). Moreover, this statute would allow the State "to enquire into, prove, and punish," Poe v. Ullman, 367 U.S. 497, 548, 81 S.Ct. 1752, 1779, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting), the exercise of this parental responsibility. The State points to no interest of sufficient magnitude to justify this direct interference with the parental guidance that is especially appropriate in this sensitive area of child development.2
61
But in my view there is considerably more room for state regulation in this area than would be permissible under the plurality's opinion. It seems clear to me, for example, that the State would further a constitutionally permissible end if it encouraged adolescents to seek the advice and guidance of their parents before deciding whether to engage in sexual intercourse. Planned Parenthood, 428 U.S., at 91, 96 S.Ct., at 2851 (Stewart, J., concurring). The State justifiably may take note of the psychological pressures that might influence children at a time in their lives when they generally do not possess the maturity necessary to understand and control their responses. Participation in sexual intercourse at an early age may have both physical and psychological consequences. These include the risks of venereal disease and pregnancy, and the less obvious mental and emotional problems that may result from sexual activity by children. Moreover, society has long adhered to the view that sexual intercourse should not be engaged in promiscuously, a judgment that an adolescent may be less likely to heed than an adult.
62
Requiring minors to seek parental guidance would be consistent with our prior cases. In Planned Parenthood, we considered whether there was "any significant state interest in conditioning (a minor's) abortion (decision) on the consent of a parent or person in loco parentis that is not present in the case of an adult." 428 U.S., at 75, 96 S.Ct., at 2844. Observing that the minor necessarily would be consulting with a physician on all aspects of the abortion decision, we concluded that the Missouri requirement was invalid because it imposed "a special-consent provision, exercisable by a person other than the woman and her physician, as a prerequisite to a minor's termination of her pregnancy and (did) so without a sufficient justification for the restriction." Ibid. But we explicitly suggested that a materially different constitutional issue would be presented with respect to a statute assuring in most instances consultation between the parent and child. Ibid., citing Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976). See Planned Parenthood, supra, 428 U.S., at 90-91, 96 S.Ct., at 2850-2851 (Stewart, J., concurring).
63
A requirement of prior parental consultation is merely one illustration of permissible regulation in this area. As long as parental distribution is permitted, a State should have substantial latitude in regulating the distribution of contraceptives to minors.3
B
64
New York also makes it a crime for anyone other than a licensed pharmacist to sell or distribute contraceptives to adults and to minors aged 16 or over. The only serious justification offered by the State for this prohibition is that it is necessary to facilitate enforcement of the limitation on distribution to children under 16 years of age. Since the Court invalidates that limitation today, the pharmacy restriction lacks any rational justification. I therefore agree with the Court that § 6811(8)'s limitation on the distribution of nonprescription contraceptives cannot be sustained.
65
But even if New York were to enact constitutionally permissible limitations on access for children, I doubt that it could justify the present pharmacy restriction as an enforcement measure. Restricting the kinds of retail outlets that may distribute contraceptives may well be justified,4 but the present statute even prohibits distribution by mail to adults. In this respect, the statute works a significant invasion of the constitutionally protected privacy in decisions concerning sexual relations. By requiring individuals to buy contraceptives over the counter, the statute heavily burdens constitutionally protected freedom.5
III
66
I also agree with the Court that New York cannot lawfully prohibit all "advertisement or display" of contraceptives. But it seems to me that the Court's opinion may be read too broadly. It flatly dismisses, as justifications "classically" irrelevant, the State's contentions that the indiscriminate advertisement of contraceptive products in some settings could be unduly offensive and could be viewed by the young as legitimation of sexual promiscuity. I agree that these justifications cannot support a complete ban on advertising, but I see no reason to cast any doubt on the authority of the State to impose carefully tailored restrictions designed to serve legitimate governmental concerns as to the effect of commercial advertising on the young.6
67
Mr. Justice STEVENS, concurring in part and concurring in the judgment.
68
For the reasons stated in Parts I, II, and III of the opinion of the Court, which I join, I agree that Population Planning Associates, Inc., has standing to challenge the New York statute and that the grant to licensed pharmacists of a monopoly in the distribution of nonmedical contraceptives is unconstitutional. I also agree with the conclusion that New York's prohibition against the distribution of contraceptives to persons under 16 years of age is unconstitutional and with the Court's conclusion that the total suppression of advertising or display of contraceptives is invalid, but my reasons differ from those set forth in Part IV of Mr. Justice BRENNAN' s opinion and I wish to add emphasis to the limitation on the Court's holding in Part V.
69
* There are two reasons why I do not join Part IV. First, the holding Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 72-75, 96 S.Ct. 2381, 2842-2844, 49 L.Ed.2d 788, that a minor's decision to abort her pregnancy may not be conditioned on parental consent, is not dispositive here. The options available to the already pregnant minor are fundamentally different from those available to nonpregnant minors. The former must bear a child unless she aborts; but persons in the latter category can and generally will avoid childbearing by abstention. Consequently, even if I had joined that part of Planned Parenthood, I could not agree that the Constitution provides the same measure of protection to the minor's right to use contraceptives as to the pregnant female's right to abort.
70
Second, I would not leave open the question whether there is a significant state interest in discouraging sexual activity among unmarried persons under 16 years of age. Indeed, I would describe as "frivolous" appellees' argument that a minor has the constitutional right to put contraceptives to their intended use, notwithstanding the combined objection of both parents and the State.
71
For the reasons explained by Mr. Justice Powell, I agree that the statute may not be applied to married females between the ages of 14 and 16, or to distribution by parents. I am not persuaded, however, that these glaring defects alone justify an injunction against other applications of the statute. Only one of the three plaintiffs in this case is a parent who wishes to give contraceptives to his children. The others are an Episcopal minister who sponsors a program against venereal disease, and a mail-order firm, which presumably has no way to determine the age of its customers. I am satisfied, for the reasons that follow, that the statute is also invalid as applied to them.
72
The State's important interest in the welfare of its young citizens justifies a number of protective measures. See Planned Parenthood of Central Missouri v. Danforth, supra, 428 U.S., at 102, 96 S.Ct., at 2856 (Stevens, J., concurring in part and dissenting in part). Such special legislation is premised on the fact that young persons frequently make unwise choices with harmful consequences; the State may properly ameliorate those consequences by providing, for example, that a minor may not be required to honor his bargain. It is almost unprecedented, however, for a State to require that an ill-advised act by a minor give rise to greater risk of irreparable harm than a similar act by an adult.1
73
Common sense indicates that many young people will engage in sexual activity regardless of what the New York Legislature does; and further, that the incidence of venereal disease and premarital pregnancy is affected by the availability or unavailability of contraceptives. Although young persons theoretically may avoid those harms by practicing total abstention, inevitably many will not. The statutory prohibition denies them and their parents a choice which, if available, would reduce their exposure to disease or unwanted pregnancy.
74
The State's asserted justification is a desire to inhibit sexual conduct by minors under 16. Appellants do not seriously contend that if contraceptives are available, significant numbers of minors who now abstain from sex will cease abstaining because they will no longer fear pregnancy or disease.2 Rather appellants' central argument is that the statute has the important symbolic effect of communicating disapproval of sexual activity by minors.3 In essence, therefore, the statute is defended as a form of propaganda, rather than a regulation of behavior.4
75
Although the State may properly perform a teaching function, it seems to me that an attempt to persuade by inflicting harm on the listener is an unacceptable means of conveying a message that is otherwise legitimate. The propaganda technique used in this case significantly increases the risk of unwanted pregnancy and venereal disease. It is as though a State decided to dramatize its disapproval of motorcycles by forbidding the use of safety helmets. One need not posit a constitutional right to ride a motorcycle to characterize such a restriction as irrational and perverse.
76
Even as a regulation of behavior, such a statute would be defective. Assuming that the State could impose a uniform sanction upon young persons who risk self-inflicted harm by operating motorcycles, or by engaging in sexual activity, surely that sanction could not take the form of deliberately injuring the cyclist or infecting the promiscuous child. If such punishment may not be administered deliberately, after trial and a finding of guilt, it manifestly cannot be imposed by a legislature, indiscriminately and at random. This kind of government-mandated harm, is, in my judgment, appropriately characterized as a deprivation of liberty without due process of law.
II
77
In Part V of its opinion, the Court holds that New York's total ban on contraceptive advertising is unconstitutional under Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346. Specifically, the Court holds that all contraceptive advertising may not be suppressed because some advertising of that subject may be offensive and embarrassing to the reader or listener. I also agree with that holding.
78
The Court properly does not decide whether the State may impose any regulation on the content of contraceptive advertising in order to minimize its offensive character. I have joined Part V of the opinion on the understanding that it does not foreclose such regulation simply because an advertisement is within the zone protected by the First Amendment.
79
The fact that a type of communication is entitled to some constitutional protection does not require the conclusion that it is totally immune from regulation. Cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 65-71, 96 S.Ct. 2440, 2449-2553, 49 L.Ed.2d 310 (opinion of Stevens, J.). An editorial and an advertisement in the same newspaper may contain misleading matter in equal measure. Although each is a form of protected expression, one may be censored while the other may not.
80
In the area of commercial speech as in the business of exhibiting motion pictures for profit the offensive character of the communication is a factor which may affect the time, place, or manner in which it may be expressed. Cf. Young v. American Mini Theatres, Inc., supra. The fact that the advertising of a particular subject matter is sometimes offensive does not deprive all such advertising of First Amendment protection; but it is equally clear to me that the existence of such protection does not deprive the State of all power to regulate such advertising in order to minimize its offensiveness. A picture which may appropriately be included in an instruction book may be excluded from a billboard.
81
I concur in the judgment and in Parts I, II, III, and V of the Court's opinion.
82
Mr. Justice REHNQUIST, dissenting.
83
Those who valiantly but vainly defended the heights of Bunker Hill in 1775 made it possible that men such as James Madison might later sit in the first Congress and draft the Bill of Rights to the Constitution. The post-Civil War Congresses which drafted the Civil War Amendments to the Constitution could not have accomplished their task without the blood of brave men on both sides which was shed at Shiloh, Gettysburg, and Cold Harbor. If those responsible for these Amendments, by feats of valor or efforts of draftsmanship, could have lived to know that their efforts had enshrined in the Constitution the right of commercial vendors of contraceptives to peddle them to unmarried minors through such means as window displays and vending machines located in the men's room of truck stops, notwithstanding the considered judgment of the New York Legislature to the contrary, it is not difficult to imagine their reaction.1
84
I do not believe that the cases discussed in the Court's opinion require any such result, but to debate the Court's treatment of the question on a case-by-case basis would concede more validity to the result reached by the Court than I am willing to do.2 There comes a point when endless and ill-considered extension of principles originally formulated in quite different cases produces such an indefensible result that no logic chopping can possibly make the fallacy of the result more obvious. The Court here in effect holds that the First and Fourteenth Amendments not only guarantee full and free debate before a legislative judgment as to the moral dangers to which minors within the jurisdiction of the State should not be subjected, but goes further and absolutely prevents the representatives of the majority from carrying out such a policy after the issues have been fully aired.
85
No questions of religious belief, compelled allegiance to a secular creed, or decisions on the part of married couples as to procreation, are involved here. New York has simply decided that it wishes to discourage unmarried minors under 16 from having promiscuous sexual intercourse with one another. Even the Court would scarcely go so far as to say that this is not a subject with which the New York Legislature may properly concern itself.
86
That legislature has not chosen to deny to a pregnant woman, after the fait accompli of pregnancy, the one remedy which would enable her to terminate an unwanted pregnancy. It has instead sought to deter the conduct which will produce such faits accomplis. The majority of New York's citizens are in effect told that however deeply they may be concerned about the problem of promiscuous sex and intercourse among unmarried teenagers, they may not adopt this means of dealing with it. The Court holds that New York may not use its police power to legislate in the interests of its concept of the public morality as it pertains to minors. The Court's denial of a power so fundamental to self-government must, in the long run, prove to be but a temporary departure from a wise and heretofore settled course of adjudication to the contrary. I would reverse the judgment of the District Court.
1
Section 6811(8) provides:
"It shall be a class A misdemeanor for:
"8. Any person to sell or distribute any instrument or article, or any recipe, drug or medicine for the prevention of contraception to a minor under the age of sixteen years; the sale or distribution of such to a person other than a minor under the age of sixteen years is authorized only by a licensed pharmacist but the advertisement or display of said articles, within or without the premises of such pharmacy, is hereby prohibited."
After some dispute in the District Court the parties apparently now agree that Education Law § 6807(b) (McKinney 1972) constitutes an exception to the distribution prohibitions of § 6811(8). Section 6807(b) provides:
"This article shall not be construed to affect or prevent:
"(b) Any physician . . . who is not the owner of a pharmacy, or registered store, or who is not in the employ of such owner, from supplying his patients with such drugs as the physician . . . deems proper in connection with his practice . . ."
The definition of "drugs" in Education Law § 6802(7) (McKinney 1972) apparently includes any contraceptive drug or device. See nn. 7, 13, and 23, and text, infra, at 697-699. See also 398 F.Supp., 321, 329-330, and n. 8.
2
In addition to PPA, the plaintiffs in the District Court, appellees here, are Population Services International, a nonprofit corporation disseminating birth control information and services; Rev. James B. Hagen, a minister and director of a venereal disease prevention program that distributes contraceptive devices; three physicians specializing in family planning, pediatrics, and obstetrics-gynecology; and an adult New York resident who alleges that the statute inhibits his access to contraceptive devices and information, and his freedom to distribute the same to his minor children. The District Court held that PPA and Hagen had standing, and therefore found it unnecessary to decide the standing of the other plaintiffs. Id., at 327-330.
The appellants here, defendants in the District Court, are state officials responsible for the enforcement of the Education Law provisions.
3
Appellants contend that PPA has not suffered "injury in fact" because it has not shown that prosecution under § 6811(8) is imminent. Steffel v. Thompson, 415 U.S. 452, 459-460, 94 S.Ct. 1209, 1215-1216, 39 L.Ed.2d 505 (1974) is dispositive of this argument. PPA alleges that it has violated the challenged statute in the past, and continues to violate it in the regular course of its business; that it has been advised by the authorities responsible for enforcing the statute that it is in violation; and that on at least one occasion, it has been threatened with prosecution. The threat is not, as in Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989 (1961) (plurality opinion), "chimerical." In that case, the challenged state law had fallen into virtual desuetude through lack of prosecution over some 80 years, and plaintiffs alleged no explicit threat of prosecution. Here, PPA has been threatened with legal action, and prosecutions have been brought under the predecessor of § 6811(8) as recently as 1965. See, e. g., People v. Baird, 47 Misc.2d 478, 262 N.Y.S.2d 947 (1965).
4
Indeed, the case for the vendor's standing to assert the rights of potential purchasers of his product is even more compelling here than in Craig, because the rights involved fall within the sensitive area of personal privacy. In such a case potential purchasers "may be chilled from . . . assertion (of their own rights) by a desire to protect the very privacy (they seek to vindicate) from the publicity of a court suit." Singleton v. Wulff, 428 U.S. 106, 117, 96 S.Ct. 2868, 2875, 49 L.Ed.2d 826 (1976).
5
Contrary to the suggestion advanced in Mr. Justice POWELL's opinion, we do not hold that state regulation must meet this standard "whenever it implicates sexual freedom," post, at 705, or "affect(s) adult sexual relations," post, at 703, but only when it "burden(s) an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision." Supra, this page. As we observe below, "the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating (private consensual sexual) behavior among adults," n. 17, infra, and we do not purport to answer that question now.
6
As Mr. Justice POWELL notes, post, at 711, the prohibition of mail-order sales of contraceptives, as practiced by PPA, is a particularly "significant invasion of the constitutionally protected privacy in decisions concerning sexual relations."
7
The narrow exception to § 6811(8) arguably provided by New York Ed. Law § 6807(b) (McKinney, Supp. 1976-1977), see n. 1, supra, which permits a physician "who is not the owner of a pharmacy, or registered store" to supply his patients with "such drugs as (he) . . . deems proper in connection with his practice" obviously does not significantly expand the number of regularly available, easily accessible retail outlets for nonprescription contraceptives, and so has little relevance to our analysis of this aspect of § 6811(8).
8
We have taken judicial notice that "not all contraceptives are potentially dangerous." Eisenstadt v. Baird, 405 U.S., 438, 451, and n. 9, 92 S.Ct. 1029, 1037, 31 L.Ed.2d 349 (1972). See also id., at 463-464, 92 S.Ct., at 1043 (White, J., concurring in result).
9
Indeed, in light of other provisions of both federal and state law that comprehensively regulate hazardous drugs and devices, see, e. g., 21 U.S.C. §§ 351-360, especially § 353(b); N.Y. Educ. Law §§ 6800-6826 (McKinney 1972 and Supp. 1976-1977), especially § 6810, it is unclear what health-related interest the State could have in nonprescription contraceptives. Eisenstadt v. Baird, supra, at 452, 92 S.Ct., 1037.
10
Nothing in New York law limits the employment of minors who work as sales clerks in pharmacies. To the extent that minors employed in other retail stores selling contraceptive products might be exposed "to undesirable comments and gestures," Brief for Appellants 3-4, or otherwise corrupted by exposure to such products, minors working as sales clerks in pharmacies are exposed to the same hazards.
11
As the District Court pointed out, while these interests are insufficient to justify limiting the distribution of nonhazardous contraceptives to pharmacists, other restrictions may well be reasonably related to the objective of quality control. We therefore express no opinion on, for example, restrictions on the distribution of contraceptives through vending machines, which are not before us in this case. See 398 F.Supp., at 336.
12
This part of the opinion expresses the views of Justices BRENNAN, STEWART, MARSHALL and BLACKMUN.
13
Subject to an apparent exception for distribution by physicians in the course of their practice. See n. 1, supra, and infra, at 697-699, and n.23.
14
Thus minors are entitled to constitutional protection for freedom of speech, Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); equal protection against racial discrimination, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); due process in civil contexts, Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); and a variety of rights of defendants in criminal proceedings, including the requirement of proof beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the prohibition of double jeopardy, Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the rights to notice, counsel, confrontation, and cross-examination, and not to incriminate oneself, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and the protection against coerced confessions, Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948).
15
This test is apparently less rigorous than the "compelling state interest" test applied to restrictions on the privacy rights of adults. See, e. g., n.16, infra. Such lesser scrutiny is appropriate both because of the States' greater latitude to regulate the conduct of children, Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed.2d 645 (1944); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), and because the right of privacy implicated here is "the interest in independence in making certain kinds of important decisions," Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, -, 51 L.Ed.2d 64 (1977), and the law has generally regarded minors as having a lesser capability for making important decisions. See, e. g., Planned Parenthood, 428 U.S., at 102, 96 S.Ct., at 2856 (Stevens, J., concurring in part and dissenting in part).
16
Planned Parenthood, however, "does not suggest that every minor regardless of age or maturity, may give effective consent for termination of her pregnancy. See Bellotti v. Baird, (428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976)). The fault (of the particular statute considered in Planned Parenthood) is that it imposes a special-consent provision, exercisable by a person other than the woman and her physician, as a prerequisite to a minor's termination of her pregnancy . . . without a sufficient justification for the restriction." Id., at 75, 96 S.Ct., at 2844.
17
Appellees argue that the State's policy to discourage sexual activity of minors is itself unconstitutional, for the reason that the right to privacy comprehends a right of minors as well as adults to engage in private consensual sexual behavior. We observe that the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating such behavior among adults. See generally Note, On Privacy: Constitutional Protection for Personal Liberty, 48 N.Y.U.L.Rev. 670, 719-738 (1973). But whatever the answer to that question, Ginsberg v. New York, supra, indicates that in the area of sexual mores, as in other areas, the scope of permissible state regulation is broader as to minors than as to adults. In any event, it is unnecessary to pass upon this contention of appellees, and our decision proceeds on the assumption that the Constitution does not bar state regulation of the sexual behavior of minors.
18
We note, moreover, that other provisions of New York law argue strongly against any conclusion that the deterrence of illegal sexual conduct among minors was an objective of § 6811(8). First, a girl in New York may marry as young as 14, with the consent of her parents and a family court judge. N.Y.Dom.Rel. Law §§ 15-a, 15(2), 15(3) (McKinney 1964 and Supp. 1976-1977). Yet although sexual intercourse by a married woman of that age violates no state law, § 6811(8) prohibits distribution of contraceptives to her. Second, New York requires that birth control information and services be provided to recipients of certain welfare programs, provided only that they are "of childbearing age, including children who can be considered sexually active." N.Y.Soc.Serv. Law § 350(1)(e) (McKinney 1976); cf. 42 U.S.C. § 602(a)(15)(A) (1970 ed., Supp. V). See also N.Y.Soc.Serv. Law § 365-a(3)(c) (McKinney 1976); cf. 42 U.S.C. § 1396d(a)(vii)(4)(C) (1970 ed., Supp. V). Although extramarital intercourse is presumably as contrary to state policy among minors covered by those programs as among others, state law requires distribution of contraceptives to them and prohibits their distribution to all others.
19
See, e. g., Settlage, Baroff, & Cooper, Sexual Experience of Younger Teenage Girls Seeking Contraceptive Assistance for the First Time, Family Planning Perspectives 223 (fall 1973); Pilpel & Wechsler, Birth Control, Teenagers and the Law: A New Look 1971, Family Planning Perspectives 37 (July 1971); Stein, Furnishing Information and Medical Treatment to Minors for Prevention, Termination and Treatment of Pregnancy, Clearinghouse Review 131, 132 (July 1971); Reiss, Contraceptive Information and Sexual Morality, Journal of Sex Research 51 (Apr. 1966). See also Note, Parental Consent Requirements and Privacy Rights of Minors: The Contraceptive Controversy, 88 Harv.L.Rev. 1001, 1010, and n.67 (1975); Jordan, A Minor's Right to Contraceptives, 7 U.Calif. Davis L. Rev. 270, 272-273 (1974).
20
See, e. g., id., at 271-273; Kanter & Zelnick, Sexual Experience of Young Unmarried Women in the United States, Family Planning Perspectives 9 (Oct. 1972).
21
Although this is not the occasion for a full examination of these problems, the following data sketchily indicate their extent. According to New York City Department of Health statistics, filed with the Court by the American Civil Liberties Union as amicus curiae, in New York City alone there were over 6,000 live births to girls under the age of 17 in 1975, as well as nearly 11,000 abortions. Moreover, "(t)eenage motherhood involves a host of problems, including adverse physical and psychological effects upon the minor and her baby, the continuous stigma associated with unwed motherhood, the need to drop out of school with the accompanying impairment of educational opportunities, and other dislocations (including) forced marriage of immature couples and the often acute anxieties involved in deciding whether to secure an abortion." Note, Parental Consent Requirements and Privacy Rights of Minors: The Contraceptive Controversy, 88 Harv.L.Rev. 1001, 1010 (1975) (footnotes omitted). See also Jordan, supra, at 273-275.
22
Appellants argue that the statement in Ginsberg v. New York, 390
U.S., at 641, 88 S.Ct., at 1281, that "it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors," is authority that the burden is appellees' to prove that there is no connection between the statute and the asserted state policy. But Ginsberg concerned a statute prohibiting dissemination of obscene material that it held was not constitutionally protected. In contrast § 6811(8) concerns distribution of material access to which is essential to exercise of a fundamental right.
23
There is considerable doubt that appellants accurately identify the legislative purposes in enacting Ed. Law §§ 6807(b) and 6811(8). Section 6811(8) (formerly Ed. Law § 6804-b and before that Penal Law § 1142(2)) was first enacted in 1965 as a modification, apparently in response to Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), of former Penal Law § 1142 titled "Indecent articles." 1965 N.Y. Laws, c. 637. This statute, which dated back at least to § 318 of the Penal Code of
1881, 1881 N.Y. Laws, c. 676, had made it a misdemeanor for any person to distribute or advertise "any instrument or article, or any drug or medicine, for the prevention of conception." Section 6807(b), on the other hand, generally excepts the distribution of drugs by a physician in the course of his practice from all the licensing requirements and restrictions imposed on the practice of pharmacy by Education Law §§ 6800-6826 (subject to certain provisos not here relevant). Such a provision, in one form or another and bearing several different numbers, has been included in the article concerning the practice of pharmacy since that article was first incorporated in the Education Law in 1927, see former Education Law § 1361, 1927 N.Y. Laws, c. 85, and before that a similar provision was included in the statutes regulating pharmacy in the Public Health Law. See, e. g., Public Health Law of 1893, § 187, 1893 N.Y. Laws, c. 661. Thus, § 6807(b) and its predecessors long predate the inclusion of § 6811(8) in the Education Law.
Even more significantly, when § 6811(8) was first enacted as Penal Law § 1142(2), it was not subject to the physicians' exception of § 6807(b). Rather, it was apparently subject to a different physicians' exception, former Penal Law § 1145 (§ 321 of the Penal Code of 1881), which provided:
"An article or instrument, used or applied by physicians lawfully practicing, or by their direction or prescription, for the cure or prevention of disease, is not an article of indecent or immoral nature or use, within this chapter. The supplying of such articles to such physicians or by their direction of prescription, is not an offense under this chapter."
This was interpreted by the New York Court of Appeals to permit a physician "in good faith" to use contraceptives to treat "a married person to cure or prevent disease," but not to permit "promiscuous advice to patients irrespective of their condition." People v. Sanger, 222 N.Y. 192, 194-195, 118 N.E. 637, 637-638 (1918), appeal dismissed for lack of jurisdiction, 251 U.S. 537, 40 S.Ct. 55, 64 L.Ed. 403 (1919) (per curiam ). See also People v. Byrne, 99 Misc. 1, 163 N.Y.S. 682 (Sup.Ct.Kings Co. 1917); People v. Baird, 47 Misc.2d 478, 262 N.Y.S.2d 947 (Sup.Ct.Nassau Co. 1965).
In light of this history, it appears that insofar as the legislature had § 6807(b) in mind at all when it transferred the prohibition of distribu-
tion of contraceptives to those under 16 from the Penal Law to the Education Law, it thought of that section as at most a narrow exception, analogous to § 1145, permitting physicians, "in connection with (their) practice," to treat or prevent disease, rather than, as appellants assert, intending that §§ 6807(b) and 6811(8) be read together as establishing a scheme under which contraceptives would be freely available to those under 16, but limiting the distribution function to physicians. The legislative history of attempts in 1972 and 1974 to modify § 6811(8), to which appellants refer, supports this construction. The legislators debating those bills seem to have thought of § 6811(8) as a flat prohibition of the distribution of contraceptives to minors, and made no reference to § 6807(b).
24
In Doe v. Bolton, 410 U.S. 179, 196, 93 S.Ct. 739, 749, 35 L.Ed.2d 201 (1973), we doubted that physicians would allow their moral "predilections on extramarital sex" to interfere with their medical judgments concerning abortions. Here, however, no medical judgment is involved at all; the State purports to commission physicians to engage in moral counseling that can reflect little other than their private views on the morality of premarital sex among the young. It seems evident that many physicians are likely to have views on this subject to a significant degree more permissive or more restrictive than those of the State, the minor, or the minor's parents. Moreover, nothing in § 6807(b) suggests that the role of the physician is limited to such "counseling." The statute does nothing more than to permit the physician to provide his patients with such drugs or devices as he "deems proper." Such "absolute, and possibly arbitrary" discretion over the privacy rights of minors is precisely what Planned Parenthood condemned. 428 U.S., at 74, 96 S.Ct., at 2843.
25
In cases involving abortions, we have emphasized that the decision to terminate a pregnancy is properly made by a woman in consultation with her physician. See, e. g., Roe v. Wade, 410 U.S. 113, 153, 164, 93 S.Ct. 705, 726, 732, 35 L.Ed.2d 147 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S.,
at 75, 96 S.Ct., at 2843. No such suggestion, however, has been made concerning the right to obtain or use contraceptives. See Griswold v. Connecticut, supra; Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). The reason, of course, is that the abortion decision necessarily involves a medical judgment, Roe v. Wade, supra, 410 U.S., at 164, 93 S.Ct., at 732, while the decision to use a nonhazardous contraceptive does not. Eisenstadt v. Baird, supra, 405 U.S., at 463-464, 92 S.Ct., at 1043-1044 (White, J., concurring in result). See also n. 24, supra.
26
The prohibition of advertising and display of contraceptives is invalid as to prescription as well as nonprescription contraceptives, at least when the advertising is by persons who are licensed to sell such products. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).
27
Indeed, as the Court recognized in Virginia Pharmacy Bd., much advertising is "tasteless and excessive," and no doubt offends many. 425 U.S., at 765, 96 S.Ct., at 1827.
28
Appellants suggest no distinction between commercial and noncommercial speech that would render these discredited arguments meritorious when offered to justify prohibitions on commercial speech. On the contrary, such arguments are clearly directed not at any commercial aspect of the prohibited advertising but at the ideas conveyed and form of expression the core of First Amendment values. Cf. Linmark Associates, Inc. v. Willingboro Tp., 431 U.S. 85, 96-97, 97 S.Ct. 1614, 1620, 52 L.Ed.2d 155.
29
We do not have before us, and therefore express no views on, state regulation of the time, place, or manner of such commercial advertising based on these or other state interests.
*
There is no need for present purposes to agree or disagree with the Court's summary of the law expressed in Part II.
1
Mr. Justice Stevens recently provided the following examples, deeply rooted in our traditions and law:
"Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent. Indeed, such consent is essential even when the young woman is already pregnant." 428 U.S., at 102, 96 S.Ct., at 2856.
2
The particular provision at issue makes it a crime for "(a)ny person to sell or distribute any instrument or article, or any recipe, drug or medicine for the prevention of contraception to a minor under the age of sixteen years . . .." Educ. Law § 6811(8) (McKinney 1972). For the reasons stated in the text, this provision unjustifiably infringes the constitutionally protected interests of parents and married female minors, and it is invalid in those two respects. Although the prohibition on distribution might be sustained as to other individuals if the restrictions on parental distribution and distribution to married female minors could be treated as severable, the result "would be to create a program quite different from the one the legislature actually adopted." Sloan v. Lemon, 413 U.S. 825, 834, 93 S.Ct. 2982, 2987, 37 L.Ed.2d 939 (1973). I therefore agree with the Court that the entire provision must be invalidated. See Dorchy v. Kansas, 264 U.S. 286, 291, 44 S.Ct. 323, 325, 68 L.Ed. 686 (1924); Dollar Co. v. Canadian C. & F. Co., 220 N.Y. 270, 279, 115 N.E. 711, 713 (1917).
3
As long as access is available through parents, I perceive no constitutional obstacle to state regulation that authorizes other designated adults such as physicians to provide relevant counseling.
4
Absent some evidence that a restriction of outlets to registered pharmacists heavily burdens the constitutional interests of adults, there would be no basis for applying the standard of review articulated in Griswold and Roe. See Part I, supra. Indeed, in the absence of such evidence there would be no reason to set aside a legislative judgment that enforcement of constitutionally permissible limitations on access for minors, see Part II-A, supra, warrants a reasonable limitation on the means for marketing contraceptives. Without some limitations on the number and type of retail outlets it would be difficult if not impossible to effectuate the state interest in assuring that minors are counseled before purchasing contraceptive devices. As pharmacists are licensed professionals, the State may be justified in relying on them to act responsibly in observing regulations applicable to minors.
5
It is not a satisfactory answer that an individual may preserve anonymity as one of a number of customers in a retail outlet. However impersonal the marketplace may be, it does not approach the privacy of the home. There may be some risk that mail distribution will occasionally permit circumvention of permissible restrictions with respect to children, but this does not justify the concomitant burden on the constitutional rights of adults.
6
The State argues that unregulated commercial advertisement of contraceptive products would be viewed by the young as "legitimation" of if not an open invitation to sexual promiscuity. The Court simply finds on the basis of the advertisements in the record before us that this interest does not justify total suppression of advertising concerning contraceptives. The Court does leave open the question whether this or other state interests would justify regulation of the time, place, or manner of such commercial advertising. Ante, at 702 n. 29. In my view, such carefully tailored restrictions may be especially appropriate when advertising is accomplished by means of the electronic media. As Judge Leventhal recently observed in that context: "(T)here is a distinction between the all-out prohibition of a censor, and regulation of time and place of speaking out, which still leaves access to a substantial part of the mature audience. What is entitled to First Amendment protection is not necessarily entitled to First Amendment protection in all places. Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Nor is it necessarily entitled to such protection at all times." Pacifica Foundation v. FCC, 181 U.S.App.D.C. 132, 157, 556 F.2d 9, 34 (1977) (dissenting opinion).
1
Only two other States have adopted similar legislation. Family Planning, Contraception and Voluntary Sterilization: An Analysis of Laws and Policies in the United States, Each State and Jurisdiction, A Report of the National Center for Family Planning Services 76 (1971) (DHEW Pub.No. (HSA) 74-16001). This publication contains a comprehensive survey of state laws in this area. The authors were aware of "no case in which either a doctor or a layman has been successfully prosecuted under any criminal statute for providing contraceptive information or services to a minor or has been held liable for damages for providing contraception to a minor without parental consent." Id., at 70. This survey also indicated that "the clear trend is toward the removal of all such barriers to the sale and distribution of contraceptives." Id., at 59. By 1971 there were 34 States with no law restricting or regulating distribution of contraceptives, ibid., and 33 States with no restrictions on advertising or display. Id., at 60.
2
Appellants make this argument only once, in passing. See Brief for Appellants 20. In the District Court, appellants candidly admitted that "there is no evidence that teenage extramarital sexual activity increases in proportion to the availability of contraceptives. . . . " See 398 F.Supp. 321, 332. Indeed, the appellants maintain that it is a "fact that youngsters will not use contraceptives even where available . . . ." Rely Brief for Appellants 5.
3
The fact that the State admittedly has never brought a prosecution under the statute, id., at 2, is consistent with appellants' position that the purpose of the statute is merely symbolic.
4
Appellants present no empirical evidence to support the conclusion that the State's "propaganda" is effective. Simply as a matter of common sense, it seems unlikely that many minors under 16 are influenced by the mere existence of a law indirectly disapproving of their conduct.
1
As well as striking down the New York prohibitions of commercial advertising and sales to persons under 16, the Court holds invalid the State's requirement that all sales be made by licensed pharmacists. Whatever New York's reasons for this particular restriction on distribution and several can be imagined I cannot believe that it could significantly impair the access to these products of a person with a settled and deliberate intention to procure them.
2
I cannot, however, let pass without comment, the statement that "the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating (private consensual sexual) behavior among adults." Ante, at 688 n. 5, 694 n. 17. While we have not ruled on every conceivable regulation affecting such conduct the facial constitutional validity of criminal statutes prohibiting certain consensual acts has been "definitively" established. Doe v. Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). See Hicks v. Miranda, 422 U.S. 332, 343-344, 95 S.Ct. 2281, 2288-2289, 45 L.Ed.2d 223 (1975).
| 45
|
431 U.S. 767
97 S.Ct. 2085
52 L.Ed.2d 738
Wesley WARD, Appellant,v.State of ILLINOIS.
No. 76-415.
Argued April 27, 1977.
Decided June 9, 1977.
Syllabus
Prior to the decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, appellant was convicted of selling obscene sado-masochistic materials in violation of the Illinois obscenity statute forbidding the sale of obscene matter and providing that "(a) thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters." The conviction was affirmed after Miller, the Illinois Supreme Court rejecting appellant's challenge to the constitutionality of the statute for failure to conform to Miller standards, as well as his claim that the publications in question were not obscene. Held :
1. The Illinois statute is not unconstitutionally vague as failing to give appellant notice that materials dealing with the kind of sexual conduct involved here could not be legally sold in the State, where (whether or not the State has complied with Miller's requirement that the sexual conduct that may not be depicted must be specifically defined by applicable state law as written or authoritatively construed) appellant had ample guidance from a previous decision of the Illinois Supreme Court making it clear that his conduct did not conform to Illinois law. Pp. 771-773.
2. Sado-masochistic materials are the kind of materials that may be proscribed by state law, Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 even though they were not expressly included within the examples of the kinds of sexually explicit representations that Miller used to explicate the aspect of its obscenity definition dealing with patently offensive depictions of specifically defined sexual conduct. P. 773.
3. The materials in question were properly found by the courts below to be obscene under the Illinois statute, which conforms to the Miller standards, except that it retains the stricter "redeeming social value" obscenity criterion announced in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. P. 773.
4. The Illinois statute is not unconstitutionally overbroad for failure to state specifically the kinds of sexual conduct the description or representation of which the State intends to proscribe, where it appears that in prior decisions the Illinois Supreme Court, although not expressly describing the kinds of sexual conduct intended to be referred to under the Miller guideline requiring inquiry "whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law," expressly incorporated such guideline as part of the law and thereby intended as well to adopt the Miller explanatory examples, which gave substantive meaning to such guideline by indicating the kinds of materials within its reach. Pp. 773-776.
63 Ill.2d 437, 349 N.E.2d 47, affirmed.
J. Steven Beckett, Urbana, Ill., for appellant.
Melbourne A. Noel, Jr., Oak Park, Ill., for appellee.
Mr. Justice WHITE delivered the opinion of the Court.
1
The principal issue in this case is the validity of the Illinois obscenity statute, considered in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). There we reaffirmed numerous prior decisions declaring that "obscene material is unprotected by the First Amendment", id., at 23, 93 S.Ct. at 2614; but acknowledging "the inherent dangers of undertaking to regulate any form of expression", ibid., we recognized that official regulation must be limited to "works which depict or describe sexual conduct" and that such conduct "must be specifically defined by the applicable state law, as written or authoritatively construed." Id., at 24, 93 S.Ct., at 2615. Basic guidelines for the trier of fact, along with more specific suggestions, were then offered:
2
"The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin (,408 U.S. 229, 230, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312 (1972)), quoting Roth v. United States, (354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957)); (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the 'utterly without redeeming social value' test of Memoirs v. Massachusetts, 383 U.S., at 419, 86 S.Ct., at 977; that concept has never commanded the adherence of more than three Justices at one time. See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, 408 U.S., at 232, 92 S.Ct., at 2247; Memoirs v. Massachusetts, supra, 383 U.S., at 459-460, 86 S.Ct., at 998 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. 184, at 204, 84 S.Ct. 1676, at 1686 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284-285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964); Roth v. United States, supra, 354 U.S., at 497-498, 77 S.Ct. 1315-1316 (Harlan, J., concurring and dissenting).
3
"We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra :
4
"(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
5
"(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." Id., at 24-25, 93 S.Ct., at 2615. (Footnotes omitted.)
6
Illinois Rev.Stat., c. 38, § 11-20(a)(1) (1975), forbids the sale of obscene matter. Section 11-20(b) defines "obscene" as follows:
7
"A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. A thing is obscene even though the obscenity is latent, as in the case of undeveloped photographs."1
8
In October 1971 appellant Ward was charged in the State of Illinois with having sold two obscene publications in violation of § 11-20(a)(1). A jury was waived. At the bench trial the State's evidence consisted solely of the two publications "Bizarre World" and "Illustrated Case Histories, a Study of Sado-Masochism" and the testimony of the police officer who purchased them in Ward's store. Ward was found guilty, and in April 1972, he was sentenced to one day in jail and fined $200. His conviction was affirmed in the state appellate courts after this Court's decision in Miller. The Illinois Supreme Court expressly rejected his challenge to the constitutionality of the Illinois obscenity statute for failure to conform to the standards of Miller, as well as a claim that the two publications were not obscene. 63 Ill.2d 437, 349 N.E.2d 47 (1976). Ward appealed, and we noted probable jurisdiction, 429 U.S. 1037, 97 S.Ct. 730, 50 L.Ed.2d 747 (1977), to resolve a conflict with a decision of a three-judge District Court for the Northern District of Illinois. Eagle Books, Inc. v. Reinhard, 418 F.Supp. 345 (1976), appeal docketed, No. 76-366. We affirm.
9
(1) As we read the questions presented by Ward,2 they subsume four issues. First, is the claim that Illinois has failed to comply with Miller's requirement that the sexual conduct that may not be depicted in a patently offensive way must be "specifically defined by the applicable state law, as written or authoritatively construed", see supra, at 768, and that absent such compliance the Illinois law is unconstitutionally vague because it failed to give him notice that materials dealing with the kind of sexual conduct involved here could not legally be sold in the State. This claim is wholly without merit. As we shall see below, the State has complied with Miller, but even if this were not the case, appellant had ample guidance from the Illinois Supreme Court that his conduct did not conform to the Illinois law. Materials such as these, which by title or content may fairly be described as sado-masochistic, had been expressly held to violate the Illinois statute long before Miller and prior to the sales for which Ward was prosecuted.
10
In People v. Sikora, 32 Ill.2d 260, 267-268, 204 N.E.2d 768, 772-773 (1965), there are detailed recitations of the kind of sexual conduct depicted in the materials found to be obscene under the Illinois statute. These recitations included "sadism and masochism."3 See also City of Blue Island v. DeVilbiss, 41 Ill.2d 135, 142, 242 N.E.2d 761, 765 (1968);4 cf. City of Chicago v. Geraci, 46 Ill.2d 576, 582-583, 264 N.E.2d 153, 157 (1970).5 The construction of the statute in Sikora gives detailed meaning to the Illinois law, is binding on us, and makes plain that § 11-20 reaches the kind of sexual materials which we now have before us. If Ward cannot be convicted for selling these materials, it is for other reasons and not because the Illinois statute is vague and gave him no notice that the statute purports to ban the kind of materials he sold. The statute is not vague as applied to Ward's conduct.
11
(2) Second, Ward appears to assert that sado-masochistic materials may not be constitutionally proscribed because they are not expressly included within the examples of the kinds of sexually explicit representations that Miller used to explicate the aspect of its obscenity definition dealing with patently offensive depictions of specifically defined sexual conduct. But those specifics were offered merely as "examples," 413 U.S., at 25, 93 S.Ct., at 2615; and, as later pointed out in Hamling v. United States, 418 U.S. 87, 114, 94 S.Ct. 2887, 2906, 41 L.Ed.2d 590 (1974), they "were not intended to be exhaustive". Furthermore, there was no suggestion in Miller that we intended to extend constitutional protection to the kind of flagellatory materials that were among those held obscene in Mishkin v. New York, 383 U.S. 502, 505-510, 86 S.Ct. 958, 961-964, 16 L.Ed.2d 56 (1966). If the Mishkin publications remain unprotected, surely those before us today deal with a category of sexual conduct which, if obscenely described, may be proscribed by state law.
12
(3) The third claim is simply that these materials are not obscene when examined under the three-part test of Miller. This argument is also foreclosed by Mishkin v. New York, supra, which came down the same day as Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), and which employed the obscenity criteria announced by the latter case. See Marks v. United States, 430 U.S. 188, 194, 97 S.Ct. 990, 994, 51 L.Ed.2d 260 (1977). The courts below examined the materials and found them obscene under the Illinois statute, which, as we shall see, infra, at 774-776, conforms to the standards set out in Miller, except that it retains the stricter Memoirs formulation of the "redeeming social value" factor. We have found no reason to differ with the Illinois courts.
13
(4) Fourth, even assuming that the Illinois statute had been construed to overcome the vagueness challenge in this case and even assuming that the materials at issue here are not protected under Miller, there remains the claim that Illinois has failed to conform to the Miller requirement that a state obscenity law, as written or authoritatively construed, must state specifically the kinds of sexual conduct the description or representation of which the State intends to proscribe by its obscenity law. If Illinois has not complied with this requirement, its statute is arguably overbroad, unconstitutional on its face, and an invalid predicate for Ward's conviction.
14
As we see it, Illinois has not failed to comply with Miller, and its statute is not overbroad. People v. Ridens, 51 Ill.2d 410, 282 N.E.2d 691 (1972), vacated and remanded, 413 U.S. 912, 93 S.Ct. 3046, 37 L.Ed.2d 1030 (1973), involved a conviction under this same Illinois obscenity law. It was pending on our docket when our judgment and opinion in Miller issued. We vacated the Ridens judgment and remanded the case for further consideration in the light of Miller. On remand, the Illinois Supreme Court explained that originally § 11-20 had provided the tests for obscenity found in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and that it subsequently had been construed to incorporate the tripartite standard found in Memoirs v. Massachusetts, supra, including the requirement that the materials prohibited be "utterly without redeeming social value." People v. Ridens, 59 Ill.2d 362, 321 N.E.2d 264 (1974). The Illinois court then proceeded to "construe section 11-20 of the Criminal Code . . . to incorporate parts (a) and (b) of the Miller standards", id., at 373, 321 N.E.2d, at 270, but to retain the "utterly without redeeming social value" standard of Memoirs in preference to the more relaxed criterion contained in part (c) of the Miller guidelines. Ridens' conviction was affirmed, and we denied certiorari.6 421 U.S. 993, 95 S.Ct. 2000, 44 L.Ed.2d 483 (1975).
15
Because the Illinois court did not go further and expressly describe the kinds of sexual conduct intended to be referred to under part (b) of the Miller guidelines, the issue is whether the Illinois obscenity law is open-ended and overbroad. As we understand the Illinois Supreme Court, however, the statute is not vulnerable in this respect. That court expressly incorporated into the statute part (b) of the guidelines, which requires inquiry "whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law". 413 U.S., at 24, 93 S.Ct., at 2615. The Illinois court thus must have been aware of the need for specificity and of the Miller Court's examples explaining the reach of part (b). See id., at 25, 93 S.Ct., at 2615. The Illinois court plainly intended to conform the Illinois law to part (b) of Miller, and there is no reason to doubt that, in incorporating the guideline as part of the law, the Illinois court intended as well to adopt the Miller examples, which gave substantive meaning to part (b) by indicating the kinds of materials within its reach. The alternative reading of the decision would lead us to the untenable conclusion that the Illinois Supreme Court chose to create a fatal flaw in its statute by refusing to take cognizance of the specificity requirement set down in Miller.
16
Furthermore, in a later case, People v. Gould, 60 Ill.2d 159, 324 N.E.2d 412 (1975), the Illinois Supreme Court quoted at length from Miller v. California, including the entire passage set out at the beginning of this opinion, supra, at 768-770, a passage that contains the explanatory examples as well as the guidelines. It then stated that Ridens had construed the Illinois statute to include parts (a) and (b) of the Miller guidelines, and it expressly referred to the standards set out in the immediately preceding quotation from Miller. 60 Ill.2d, at 164-165, 324 N.E.2d, at 415. Because the quotation contained not only part (b) but the examples given to explain that part, it would be a needlessly technical and wholly unwarranted reading of the Illinois opinions to conclude that the state court did not adopt these explanatory examples as well as the guidelines themselves.
17
It might be argued that, whether or not the Illinois court adopted the Miller examples as part of its law, § 11-20 nevertheless remains overbroad because the State has not provided an exhaustive list of the sexual conduct the patently offensive description of which may be held obscene under the statute. We agree with the Illinois Supreme Court, however, that "in order that a statute be held overbroad the overbreadth 'must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.' (Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830, 842.)" People v. Ridens, supra, 59 Ill.2d, at 372, 321 N.E.2d, at 269. Since it is plain enough from its prior cases and from its response to Miller that the Illinois court recognizes the limitations on the kinds of sexual conduct which may not be represented or depicted under the obscenity laws, we cannot hold the Illinois statute to be unconstitutionally overbroad.
18
Given that Illinois has adopted Miller's explanatory examples, what the State has done in attempting to bring its statute in conformity with Miller is surely as much as this Court did in its post-Miller construction of federal obscenity statutes. In Hamling v. United States, 418 U.S., at 114, 94 S.Ct., at 2906, we construed 18 U.S.C. § 1461, which prohibits the mailing of obscene matter, to be limited to "the sort of" patently offensive representations or descriptions of that specific hardcore sexual conduct given as examples in Miller. We have also indicated our approval of an identical approach with respect to the companion provisions of 18 U.S.C. § 1462, which prohibits importation or transportation of obscene matter. See United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n. 7, 93 S.Ct. 2665, 2670, 37 L.Ed.2d 500 (1973).
19
Finding all four of Ward's claims to be without merit, we affirm the judgment of the Illinois Supreme Court.
20
So ordered.
21
Mr. Justice BRENNAN, with whom Mr. Justice STEWART joins, dissenting.
22
Petitioner was convicted of selling allegedly obscene publications in violation of the Illinois Obscenity Statute, Ill.Rev.Stat., c. 38, § 11-20(a) (1) (1975). The Illinois Supreme Court affirmed the conviction. Although I have joined my Brother STEVENS' dissent, I could also reverse the conviction on the ground I have previously relied upon, namely that this statute is "clearly overbroad and unconstitutional on its face." 413 U.S. 913, 914, 93 S.Ct. 3030, 37 L.Ed.2d 1022 (1973) (BRENNAN, J., dissenting in Miller v. United States and other cases), citing Miller v. California, 413 U.S. 15, 47, 93 S.Ct. 2607, 2627, 37 L.Ed.2d 419 (1973) (BRENNAN, J., dissenting); see Ridens v. Illinois, 413 U.S. 912, 93 S.Ct. 3046, 37 L.Ed.2d 1030 (1973), vacating and remanding 51 Ill.2d 410, 282 N.E.2d 691 (1972).
23
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL join, dissenting.
24
The decision in this case confirms the statement in Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419, that "(t)his is an area in which there are few eternal verities." Today, the Court silently abandons one of the cornerstones of the Miller test announced so forcefully just five years ago.
The Miller Court stated:
25
"Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution." Id., at 27, 93 S.Ct., at 2616-2617.
26
The specificity requirement is stressed elsewhere in the opinion.1 More than 50 cases were remanded for further consideration to give the defendants the "benefit" of this aspect of Miller. See 413 U.S. 902 et seq., 93 S.Ct. 3027, 37 L.Ed.2d 1015; Marks v. United States, 430 U.S. 188, 197 n. 12, 97 S.Ct. 990, 995, 51 L.Ed.2d 260.
27
Many state courts, taking Miller at face value, invalidated or substantially limited their obscenity laws.2 Others, like Illinois, did "little more than pay lip service to the specificity requirement in Miller." F. Schauer, The Law of Obscenity 167 (1976). Like most pre-Miller obscenity statutes, the Illinois statute contained open-ended terms broad enough to prohibit the distribution of any material making an "appeal . . . to prurient interest."3 In its post-Miller opinions, the Illinois Supreme Court has made it clear that the statute covers all of the Miller examples. It has not, however, stated that the statute is limited to those examples, or to any other specifically defined category.4
28
Nevertheless, this Court affirms the conviction in this Illinois case on two theories. The first is that this particular defendant had notice that the State considered these materials obscene, because prior Illinois cases had upheld obscenity convictions concerning similar material. But, if such notice is all that is required, it is difficult to understand why the Miller case itself was remanded for consideration of the specificity issue, see 413 U.S., at 37, 93 S.Ct., at 2622. For the description of the materials involved in Miller leaves no room for doubt that they were similar to materials which had often been the subject of prosecutions in the past;5 there clearly was no question of fair notice.6
29
The Court's second theory is that, in any event, the Illinois statute is sufficiently specific to satisfy Miller. Although the statute does not contain an "exhaustive list" of specific examples, ante, at 776, it passes muster because it contains a generic reference to "the kinds of sexual conduct which may not be represented or depicted under the obscenity laws . . .," ibid. (emphasis in original). To hold that the list need not be exhaustive is to hold that a person can be prosecuted although the materials he sells are not specifically described in the list. Only five years ago, the Court promised that "no one" could be so prosecuted, Miller, 413 U.S., at 27, 93 S.Ct., at 2616. And if the statute need only describe the "kinds" of proscribed sexual conduct, it adds no protection to what the Constitution itself creates. For in Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642, this Court held that the Constitution protected all expression which is not "within either of the two examples given in Miller" or "sufficiently similar to such material to justify similar treatment." Id., at 161, 94 S.Ct. at 2755.
30
One of the strongest arguments against regulating obscenity through criminal law is the inherent vagueness of the obscenity concept. The specificity requirement as described in Miller held out the promise of a principled effort to respond to that argument. By abandoning that effort today, the Court withdraws the cornerstone of the Miller structure and, undoubtedly, hastens its ultimate downfall. Although the decision is therefore a mixed blessing, I nevertheless respectfully dissent.
1
Section 11-20(c) provides:
"(c) Interpretation of Evidence.
"Obscenity shall be judged with reference to ordinary adults, except that it shall be judged with reference to children or other specially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be specially designed for or directed to such an audience."
2
The questions presented in Ward's Jurisdictional Statement 3 are (1) whether the provisions of § 11-20, "on its face and as construed by the Illinois Supreme Court, are vague, indefinite, overbroad and uncertain, in violation of the free speech and press and due process provisions of the First and Fourteenth Amendments to the Constitution of the United States"; and (2) whether "the publications, 'Bizarre World' and 'Illustrated Case Histories, a Study of Sado-Masochism' are constitutionally protected, as a matter of law."
3
The Illinois Supreme Court described the materials as follows, 32 Ill.2d, at 267-268, 204 N.E.2d, at 772-773:
" 'Lust Campus' by Andrew Shaw is a story of sexual adventures on a college campus 'where even members of the faculty taught sin and evil.' The book describes homosexuals 'necking' on a public beach; mutual masturbation; self-fondling; a circle of persons engaged in oral-genital contact; rape; intercourse; lesbian intercourse; cunnilingus and flagellation; flagellation with barbed wire; an abortion with red-hot barbed wire; masturbation with a mirror reflection, and a transvestite episode.
" 'Passion Bride' by John Dexter described curricular and extracurricular sexual episodes that take place during a honeymoon on the French Riviera. The book describes masturbation; intercourse; a party between an old man and three prostitutes; attempted intercourse in a bath; lesbian foreplay; flagellation; rape ending in the death of the female from a broken back and intercourse ending in the broken back of the male participant.
" 'Crossroads of Lust' by Andrew Shaw describes the sexual adventures of various persons in a small town. There are numerous descriptions of intercourse; lesbian intercourse; oral-genital contact; and rape. A woman stabs a man in the course of intercourse, completing the act after he is dead. There are also three voyeurism scenes, two of which involve watching lesbian love play. The third is characterized by sadism and masochism."
4
This case involved a local ordinance that the Illinois Supreme Court described as identical to the state statute. The court described the materials at issue:
"The books are replete with accounts of homosexual acts, masturbation, flagellation, oral-genital acts, rape, voyeurism, masochism and sadism. These accounts can only appeal to the prurient interest, and clearly go beyond customary limits of candor in the kinds of conduct described and in the detail of description." 41 Ill.2d, at 142, 242 N.E.2d, at 765.
5
The materials under scrutiny also under a local ordinance were described by the court:
"The author's accounts of normal and abnormal sexual conduct, including sodomy, flagellation, masturbation, oral-genital contact, anal intercourse, lesbianism, and sadism and masochism, are vivid, intimately detailed, and explicit. (Cf. One, Inc. v. Olesen (1958), 355 U.S. 371, 78 S.Ct. 364, 2 L.Ed.2d 352.)" 46 Ill.2d, at 582-583, 264 N.E.2d, at 157.
6
Four Justices dissented, but waived the Rule of Four that, if at least four Justices so request, the Court will give plenary consideration to a particular case. 421 U.S., at 994 n., 95 S.Ct., at 2000n.
1
"That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. . . .
"The basic guidelines for the trier of fact must be: . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law . . . ." 413 U.S., at 24, 93 S.Ct., at 2615.
On the following page, the Court gives examples of such "specific" definitions.
2
E. g., State v. Harding, 114 N.H. 335, 320 A.2d 646 (1974); People v. Tabron, 320 Colo. 646, 544 P.2d 372 (1976); ABC Interstate Theatres, Inc. v. State, 325 So.2d 123 (Miss.1976); State v. Wedelstedt, 213 N.W.2d 652 (Iowa 1973); Commonwealth v. Horton, 365 Mass. 164, 310 N.E.2d 316 (1974). Many statutes passed since Miller have included definitions more specific than that given in Miller. See, e. g., La.Rev.Stat.Ann. § 14:106 (1974); N.Y. Penal Law § 235.00 (McKinney 1974 and Supp. 1976).
3
This Court saved such a statute in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, by holding that it was limited to the examples given in Miller. In its final footnote to United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n. 7, 93 S.Ct. 2665, 2670, 37 L.Ed.2d 500, the Court had stated that it was prepared to construe generic words such as "obscene" and "lewd" in 18 U.S.C. § 1462, "as limiting regulated material to patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in
(Miller )." (Emphasis added.) In Hamling, the Court quoted this language and added:
"As noted above, we indicated in (12 200-Ft. Reels of Film ) that we were prepared to construe the generic terms in 18 U.S.C. § 1462 to be limited to the sort of 'patently offensive representations or descriptions of that specific "hard core" sexual conduct given as examples in Miller v. California.' We now so construe the companion provision in 18 U.S.C. § 1461 . . . ." 418 U.S., at 114, 94 S.Ct. at 2906.
4
In a well-reasoned opinion, a three-Judge District Court for the Northern District of Illinois carefully reviewed the Illinois authorities and concluded that Illinois has failed to meet the specificity requirement of Miller. Eagle Books, Inc. v. Reinhard, 418 F.Supp. 345 (ND Ill.1976). This conclusion is well founded.
The Illinois statute defines obscenity in these terms:
"A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters." Ill.Rev.Stat., c. 38, § 11-20(b) (1975).
Nothing in this definition or the rest of the statute "specifically defines" what depiction of hard-core sexual conduct is prohibited.
The Illinois Supreme Court has not remedied this deficiency by supplying a limiting construction. In its primary discussion of the State's obscenity statute in relation to the Miller specificity requirement, People v. Ridens, 59 Ill.2d 362, 321 N.E.2d 264 (1974) (Ridens II ), the Illinois Supreme Court relied on two cases to uphold the statute. In the first case, Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 this Court noted in language quoted by the Illinois court that "(t)he words of the Rockford ordinance are marked by 'flexibility and reasonable breadth, rather than meticulous specificity . . . .' " The second case which the Ridens II court relied upon was its own decision in People v. Raby, 40 Ill.2d 392, 240 N.E.2d 595 (1968). That case concerned the alleged vagueness of a statute designed to prohibit public disorder. The Illinois court quoted the following language from Raby, and in the next sentence relied upon that decision and Grayned in upholding the statute's specificity:
"It is true that section 26-1(a) does not attempt to particularize all
of the myriad kinds of conduct that may fall within the statute. The legislature deliberately chose to frame the provision in general terms, prompted by the futility of an effort to anticipate and enumerate all of the methods of disrupting public order that fertile minds might devise." 40 Ill.2d, at 396, 240 N.E.2d, at 598.
Neither of these decisions requires conduct to be specifically defined; indeed, Raby notes that to survive a vagueness attack a statute need not "attempt to particularize all of the myriad kinds of conduct" within its bounds. This may be true for other vagueness attacks, but does not square with the special Miller requirement that conduct be specifically defined. Nowhere else in the Ridens II opinion does the Illinois Supreme Court limit the reach of the obscenity statute.
In the present case, the Illinois Supreme Court again considered the specificity problem, and again refused to narrow the statute:
"It was held in Ridens II that the obscenity statute was sufficiently clear and that it adequately informed the public of the conduct whose depiction is proscribed. We noted that the statutory definition of obscenity includes within the scope of the 'prurient interest' a 'shameful or morbid interest in nudity, sex or excretion.' The defendant argues that we erred in Ridens II in our interpretation of Miller and that Miller requires obscenity statutes to be much more specific in defining the type of material which will be considered obscene. We see no reason to reconsider our decision in Ridens II. It is extremely difficult to define the term 'obscenity' with a fine degree of precision. We again express our opinion that Illinois' statutory definition is sufficiently clear to withstand constitutional objections." 63 Ill.2d 437, 441, 349 N.E.2d 47, 49 (1976).
Thus, there does not appear to be anything in the Illinois decisions that would preclude the State from prosecuting forms of obscenity not "specifically defined" in prior decisions. And, as noted above, the statute provides no specific definition in this area.
5
The materials are described as follows in the opinion:
"While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed." 413 U.S., at 18, 93 S.Ct., at 2611-2612.
The State's description was somewhat more specific:
"The materials involved are a collection of depictions of cunnilingus, sodomy, buggery and other similar sexual acts performed in groups of two or more." Brief for Appellee in No. 70-73, O.T.1972, p. 26.
6
If fair notice is the issue, it is hard to see how this can be provided by a narrowing construction made after the underlying conduct. Yet in Hamling, 418 U.S., at 115-116, 94 S.Ct., at 2906-2907, the Court held such ex post facto "notice" sufficient.
| 23
|
431 U.S. 720
97 S.Ct. 2061
52 L.Ed.2d 707
ILLINOIS BRICK COMPANY et al., Petitioners,v.State of ILLINOIS et al.
No. 76-404.
Argued March 23, 1977.
Decided June 9, 1977.
Rehearing Denied Oct. 3, 1977.
See 434 U.S. 881, 98 S.Ct. 243.
Syllabus
Respondents, the State of Illinois and 700 local governmental entities, brought this antitrust treble-damages action under § 4 of the Clayton Act alleging that petitioners, concrete block manufacturers (which sell to masonry contractors, which in turn sell to general contractors, from which respondents purchase the block in the form of masonry structures) had engaged in a price-fixing conspiracy in violation of § 1 of the Sherman Act. Petitioners, relying on Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231, moved for partial summary judgment against all plaintiffs that were indirect purchasers of block from petitioners, contending that only direct purchasers could sue for the alleged overcharge. The District Court granted the motion, but the Court of Appeals reversed, holding that indirect purchasers such as respondents could recover treble damages for an illegal overcharge if they could prove that the overcharge was passed on to them through the intermediate distribution channels. Hanover Shoe held that generally the illegally overcharged direct purchaser suing for treble damages, and not others in the chain of manufacture or distribution, is the party "injured in his business or property" within the meaning of § 4. Held:
1. If a pass-on theory may not be used defensively by an antitrust violator (defendant) against a direct purchaser (plaintiff) that theory may not be used offensively by an indirect purchaser (plaintiff) against an alleged violator (defendant). Therefore, unless Hanover Shoe is to be overruled or limited, it bars respondents' pass-on theory. Pp. 729-736.
(a) Allowing offensive but not defensive use of pass-on would create a serious risk of multiple liability for defendants, since even though an indirect purchaser had already recovered for all or part of an overcharge passed on to him, the direct purchaser would still automatically recover the full amount of the overcharge that the indirect purchaser had shown to be passed on, and, similarly, following an automatic recovery of the full overcharge by the direct purchaser, the indirect purchaser could sue to recover the same amount. Overlapping recoveries would certainly result from the two lawsuits unless the indirect purchaser is unable to establish any pass-on whatsoever. Pp. 730-731.
(b) The Court's perception in Hanover Shoe of the uncertainties and difficulties in analyzing price and output decisions "in the real economic world rather than an economist's hypothetical model," applies with equal force to the assertion of pass-on theories by plaintiffs as it does to such assertion by defendants. Pp. 731-733.
(c) Because Hanover Shoe would bar petitioners from using respondents' pass-on theory as a defense to a treble-damages suit by the direct purchasers (the masonry contractors), Hanover Shoe must be overruled (or narrowly limited), or it must be applied to bar respondents' attempt to use this pass-on theory offensively. Pp. 736-747.
2. Hanover Shoe was correctly decided and its construction of § 4 is adhered to. Pp. 736-747.
(a) Considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation. Pp. 736-737.
(b) Whole new dimensions of complexity would be added to treble-damages suits, undermining their effectiveness, if the use of pass-on theories under § 4 were allowed. Even under the optimistic assumption that joinder of potential plaintiffs would deal satisfactorily with problems of multiple litigation and liability, § 4 actions would be transformed into massive multiparty litigations involving many distribution levels and including large classes of ultimate consumers remote from the defendant. The Court's concern in Hanover Shoe with the problems of "massive evidence and complicated theories" involved in attempting to establish a pass-on defense against a direct purchaser applies a fortiori to the attempt to trace the effect of the overcharge through each step in the distribution chain from the direct purchasers to the ultimate consumer. Pp. 737-744.
(c) Attempts to carve out exceptions to Hanover Shoe for particular types of markets would entail the very problems that Hanover Shoe sought to avoid. Pp. 744-745.
(d) The legislative purpose in creating a group of "private attorneys general" to enforce the antitrust laws under § 4, Hawaii v. Standard Oil Co. of California, 405 U.S. 251, 262, 92 S.Ct. 885, 891, 31 L.Ed.2d 184, is better served by holding direct purchasers to be injured to the full extent of the overcharge paid by them than by attempting to apportion the overcharge among all that may have absorbed a part of it. Pp. 745-747.
536 F.2d 1163, reversed and remanded.
Edward H. Hatton, Chicago, Ill., for petitioners.
Lee A. Freeman, Jr., Chicago, Ill., for respondents.
Donald I. Baker, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
[Amicus Curiae Information from page 722-724 intentionally omitted]
Mr. Justice WHITE delivered the opinion of the Court.
1
Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), involved an antitrust treble-damages action brought under § 4 of the Clayton Act1 against a manufacturer of shoe machinery by one of its customers, a manufacturer of shoes. In defense, the shoe machinery manufacturer sought to show that the plaintiff had not been injured in its business as required by § 4 because it had passed on the claimed illegal overcharge to those who bought shoes from it. Under the defendant's theory, the illegal overcharge was absorbed by the plaintiff's customers indirect purchasers of the defendant's shoe machinery who were the persons actually injured by the antitrust violation.
2
In Hanover Shoe this Court rejected as a matter of law this defense that indirect rather than direct purchasers were the parties injured by the antitrust violation. The Court held that except in certain limited circumstances,2 a direct purchaser suing for treble damages under § 4 of the Clayton Act is injured within the meaning of § 4 by the full amount of the overcharge paid by it and that the antitrust defendant is not permitted to introduce evidence that indirect purchasers were in fact injured by the illegal overcharge. 392 U.S., at 494, 88 S.Ct., at 2232. The first reason for the Court's rejection of this offer of proof was an unwillingness to complicate treble-damages actions with attempts to trace the effects of the overcharge on the purchaser's prices, sales, costs, and profits, and of showing that these variables would have behaved differently without the overcharge. Id., at 492-493, 88 S.Ct., at 2231.3 A second reason for barring the pass-on defense was the Court's concern that unless direct purchasers were allowed to sue for the portion of the overcharge arguably passed on to indirect purchasers, antitrust violators "would retain the fruits of their illegality" because indirect purchasers "would have only a tiny stake in the lawsuit" and hence little incentive to sue. Id., at 494, 88 S.Ct., at 2232.
3
In this case we once again confront the question whether the overcharged direct purchaser should be deemed for purposes of § 4 to have suffered the full injury from the overcharge; but the issue is presented in the context of a suit in which the plaintiff, an indirect purchaser, seeks to show its injury by establishing pass-on by the direct purchaser and in which the antitrust defendants rely on Hanover Shoe's rejection of the pass-on theory. Having decided that in general a pass-on theory may not be used defensively by an antitrust violator against a direct purchaser plaintiff, we must now decide whether that theory may be used offensively by an indirect purchaser plaintiff against an alleged violator.
4
* Petitioners manufacture and distribute concrete block in the Greater Chicago area. They sell the block primarily to masonry contractors, who submit bids to general contractors for the masonry portions of construction projects. The general contractors in turn submit bids for these projects to customers such as the respondents in this case, the State of Illinois and 700 local governmental entities in the Greater Chicago area, including counties, municipalities, housing authorities, and school districts. See 67 F.R.D. 461, 463 (ND Ill.1975); App. 16-48. Respondents are thus indirect purchasers of concrete block, which passes through two separate levels in the chain of distribution before reaching respondents. The block is purchased directly from petitioners by masonry contractors and used by them to build masonry structures; those structures are incorporated into entire buildings by general contractors and sold to respondents.
5
Respondent State of Illinois, on behalf of itself and respondent local governmental entities, brought this antitrust treble-damages action under § 4 of the Clayton Act, alleging that petitioners had engaged in a combination and conspiracy to fix the prices of concrete block in violation of § 1 of the Sherman Act.4 The complaint alleged that the amounts paid by respondents for concrete block were more than $3 million higher by reason of this price-fixing conspiracy. The only way in which the antitrust violation alleged could have injured respondents is if all or part of the overcharge was passed on by the masonry and general contractors to respondents, rather than being absorbed at the first two levels of distribution. See Illinois v. Ampress Brick Co., 536 F.2d 1163, 1164 (CA7 1976).5
6
(1) Petitioner manufacturers moved for partial summary judgment against all plaintiffs that were indirect purchasers of concrete block from petitioners, contending that as a matter of law only direct purchasers could sue for the alleged overcharge.6 The District Court granted petitioners' motion, but the Court of Appeals reversed, holding that indirect purchasers such as respondents in this case can recover treble damages for an illegal overcharge if they can prove that the overcharge was passed on to them through intervening links in the distribution chain.7
7
We granted certiorari, 429 U.S. 938, 97 S.Ct. 352, 50 L.Ed.2d 307 (1976), to resolve a conflict among the Courts of Appeals8 on the question whether the offensive use of pass-on authorized by the decision below is consistent with Hanover Shoe's restrictions on the defensive use of pass-on. We hold that it is not, and we reverse. We reach this result in two steps. First, we conclude that whatever rule is to be adopted regarding pass-on in antitrust damages actions, it must apply equally to plaintiffs and defendants. Because Hanover Shoe would bar petitioners from using respondents' pass-on theory as a defense to a treble-damages suit by the direct purchasers (the masonry contractors),9 we are faced with the choice of overruling (or narrowly limiting) Hanover Shoe or of applying it to bar respondents' attempt to use this pass-on theory offensively. Second, we decline to abandon the construction given § 4 in Hanover Shoe that the overcharged direct purchaser, and not others in the chain of manufacture or distribution, is the party "injured in his business or property" within the meaning of the section in the absence of a convincing demonstration that the Court was wrong in Hanover Shoe to think that the effectiveness of the antitrust treble-damages action would be substantially reduced by adopting a rule that any party in the chain may sue to recover the fraction of the overcharge allegedly absorbed by it.
II
8
(2) The parties in this case agree that however § 4 is construed with respect to the pass-on issue, the rule should apply equally to plaintiffs and defendants that an indirect purchaser should not be allowed to use a pass-on theory to recover damages from a defendant unless the defendant would be allowed to use a pass-on defense in a suit by a direct purchaser. Respondents, in arguing that they should be allowed to recover by showing pass-on in this case, have conceded that petitioners should be allowed to assert a pass-on defense against direct purchasers of concrete block, Tr. of Oral Arg. 33, 48; they ask this Court to limit Hanover Shoe's bar on pass-on defenses to its "particular factual context" of overcharges for capital goods used to manufacture new products. Id., at 41; see id., at 36, 47-48.
9
Before turning to this request to limit Hanover Shoe, we consider the substantially contrary position, adopted by our dissenting Brethren, by the United States as amicus curiae, and by lower courts that have allowed offensive use of pass-on, that the unavailability of a pass-on theory to a defendant should not necessarily preclude its use by plaintiffs seeking treble damages against that defendant.10 Under this view, Hanover Shoe's rejection of pass-on would continue to apply to defendants unless direct and indirect purchasers were both suing the defendant in the same action; but it would not bar indirect purchasers from attempting to show that the overcharge had been passed on to them. We reject this position for two reasons.
10
First, allowing offensive but not defensive use of pass-on would create a serious risk of multiple liability for defendants. Even though an indirect purchaser had already recovered for all or part of an overcharge passed on to it, the direct purchaser would still recover automatically the full amount of the overcharge that the indirect purchaser had shown to be passed on; similarly, following an automatic recovery of the full overcharge by the direct purchaser, the indirect purchaser could sue to recover the same amount. The risk of duplicative recoveries created by unequal application of the Hanover Shoe rule is much more substantial than in the more usual situation where the defendant is sued in two different lawsuits by plaintiffs asserting conflicting claims to the same fund. A one-sided application of Hanover Shoe substantially increases the possibility of inconsistent adjudications and therefore of unwarranted multiple liability for the defendant by presuming that one plaintiff (the direct purchaser) is entitled to full recovery while preventing the defendant from using that presumption against the other plaintiff; overlapping recoveries are certain to result from the two lawsuits unless the indirect purchaser is unable to establish any pass-on whatsoever. As in Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251, 264, 92 S.Ct. 885, 892, 31 L.Ed.2d 184 (1972), we are unwilling to "open the door to duplicative recoveries" under § 4.11
11
Second, the reasoning of Hanover Shoe cannot justify unequal treatment of plaintiffs and defendants with respect to the permissibility of pass-on arguments. The principal basis for the decision in Hanover Shoe was the Court's perception of the uncertainties and difficulties in analyzing price and output decisions "in the real economic world rather than an economist's hypothetical model," 392 U.S., at 493, 88 S.Ct., at 2231 and of the costs to the judicial system and the efficient enforcement of the antitrust laws of attempting to reconstruct those decisions in the courtroom.12 This perception that the attempt to trace the complex economic adjustments to a change in the cost of a particular factor of production would greatly complicate and reduce the effectiveness of already protracted treble-damages proceedings applies with no less force to the assertion of pass-on theories by plaintiffs than it does to the assertion by defendants. However "long and complicated" the proceedings would be when defendants sought to prove pass-on, ibid., they would be equally so when the same evidence was introduced by plaintiffs. Indeed, the evidentiary complexities and uncertainties involved in the defensive use of pass-on against a direct purchaser are multiplied in the offensive use of pass-on by a plaintiff several steps removed from the defendant in the chain of distribution. The demonstration of how much of the overcharge was passed on by the first purchaser must be repeated at each point at which the price-fixed goods changed hands before they reached the plaintiff.13
12
(3) It is argued, however, that Hanover Shoe rests on a policy of ensuring that a treble-damages plaintiff is available to deprive antitrust violators of "the fruits of their illegality," id., at 494, 88 S.Ct., at 2232, a policy that would be furthered by allowing plaintiffs but not defendants to use pass-on theories. See, e. g., In re Western Liquid Asphalt Cases, 487 F.2d 191, 197 (CA9 1973), cert. denied, sub nom. Standard Oil Co. of Cal. v. Alaska, 415 U.S. 919, 94 S.Ct. 1419, 39 L.Ed.2d 474 (1974); Brief for United States as Amicus Curiae 4-6, 12-13, 17-19.14 We do not read the Court's concern in Hanover Shoe for the effectiveness of the treble-damages remedy as countenancing unequal application of the Court's pass-on rule. Rather, we understand Hanover Shoe as resting on the judgment that the antitrust laws will be more effectively enforced by concentrating the full recovery for the overcharge in the direct purchasers rather than by allowing every plaintiff potentially affected by the overcharge to sue only for the amount it could show was absorbed by it.
13
(4) We thus decline to construe § 4 to permit offensive use of a pass-on theory against an alleged violator that could not use the same theory as a defense in an action by direct purchasers. In this case, respondents seek to demonstrate that masonry contractors, who incorporated petitioners' block into walls and other masonry structures, passed on the alleged overcharge on the block to general contractors, who incorporated the masonry structures into entire buildings, and that the general contractors in turn passed on the overcharge to respondents in the bids submitted for those buildings. We think it clear that under a fair reading of Hanover Shoe petitioners would be barred from asserting this theory in a suit by the masonry contractors.
14
In Hanover Shoe this Court did not endorse the broad exception that had been recognized in that case by the courts below permitting the pass-on defense against middlemen who did not alter the goods they purchased before reselling them.15 The masonry contractors here could not be included under this exception in any event, because they transform the concrete block purchased from defendants into the masonry portions of buildings. But this Court in Hanover Shoe indicated the narrow scope it intended for any exception to its rule barring pass-on defenses by citing, as the only example of a situation where the defense might be permitted, a pre-existing cost-plus contract. In such a situation, the purchaser is insulated from any decrease in its sales as a result of attempting to pass on the overcharge, because its customer is committed to buying a fixed quantity regardless of price. The effect of the overcharge is essentially determined in advance, without reference to the interaction of supply and demand that complicates the determination in the general case. The competitive bidding process by which the concrete block involved in this case was incorporated into masonry structures and then into entire buildings can hardly be said to circumvent complex market interactions as would a cost-plus contract.16
15
We are left, then, with two alternatives: either we must overrule Hanover Shoe (or at least narrowly confine it to its facts), or we must preclude respondents from seeking to recover on their pass-on theory. We choose the latter course.
III
16
(5) In considering whether to cut back or abandon the Hanover Shoe, rule, we must bear in mind that considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation. See Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408, 52 S.Ct. 443, 447-448, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting). This presumption of adherence to our prior decisions construing legislative enactments would support our reaffirmance of the Hanover Shoe construction of § 4, joined by eight Justices without dissent only a few years ago,17 even if the Court were persuaded that the use of pass-on theories by plaintiffs and defendants in treble-damages actions is more consistent with the policies underlying the treble-damages action than is the Hanover Shoe rule. But we are not so persuaded.
17
(6) Permitting the use of pass-on theories under § 4 essentially would transform treble-damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge from direct purchasers to middlemen to ultimate consumers. However appealing this attempt to allocate the overcharge might seem in theory, it would add whole new dimensions of complexity to treble-damages suits and seriously undermine their effectiveness.
18
As we have indicated, potential plaintiffs at each level in the distribution chain are in a position to assert conflicting claims to a common fund the amount of the alleged overcharge by contending that the entire overcharge was absorbed at that particular level in the chain.18 A treble-damages action brought by one of these potential plaintiffs (or one class of potential plaintiffs) to recover the overcharge implicates all three of the interests that have traditionally been thought to support compulsory joinder of absent and potentially adverse claimants: the interest of the defendant in avoiding multiple liability for the fund; the interest of the absent potential plaintiffs in protecting their right to recover for the portion of the fund allocable to them; and the social interest in the efficient administration of justice and the avoidance of multiple litigation. Reed, Compulsory Joinder of Parties in Civil Actions, 55 Mich.L.Rev. 327, 330 (1957). See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 110-111, 88 S.Ct. 733, 738-739, 19 L.Ed.2d 936 (1968); 7 C. Wright & A. Miller, Federal Practice and Procedure § 1602 (1972).
19
Opponents of the Hanover Shoe rule have recognized this need for compulsory joinder in suggesting that the defendant could interplead potential claimants under 28 U.S.C. § 1335.19 But if the defendant, for any of a variety of reasons,20 does not choose to interplead the absent potential claimants, there would be a strong argument for joining them as "persons needed for just adjudication" under Fed.Rule Civ.Proc. 19(a).21 See Comment, Standing to Sue in Antitrust Cases: The Offensive Use of Passing-On, 123 U.Pa.L.Rev. 976, 998 (1975). These absent potential claimants would seem to fit the classic definition of "necessary parties," for purposes of compulsory joinder, given in Shields v. Barrow, 17 How. 130, 139, 15 L.Ed. 158 (1855):
20
"Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it."
21
See Notes of Advisory Committee on 1966 Amendment to Rule 19, 28 U.S.C. App., p. 7760; 7 C. Wright & A. Miller, supra, §§ 1604, 1618; 3A J. Moore, Federal Practice P 19.08 (1974). The plaintiff bringing the treble-damages action would be required, under Fed.Rule Civ.Proc. 19(c), to "state the names, if known," of these absent potential claimants; they should also be notified by some means that the action was pending.22 Where, as would often be the case, the potential claimants at a particular level of distribution are so numerous that joinder of all is impracticable, a representative presumably would have to be found to bring them into the action as a class. See Fed.Rule Civ.Proc. 19(d); 3A J. Moore, supra P 19.21.
22
It is unlikely, of course, that all potential plaintiffs could or would be joined. Some may not wish to assert claims to the overcharge; others may be unmanageable as a class; and still others may be beyond the personal jurisdiction of the court. We can assume that ordinarily the action would still proceed, the absent parties not being deemed "indispensable" under Fed.Rule Civ.Proc. 19(b). See Provident Tradesmens Bank & Trust Co. v. Patterson, supra. But allowing indirect purchasers to recover using pass-on theories, even under the optimistic assumption that joinder of potential plaintiffs will deal satisfactorily with problems of multiple litigation and liability, would transform treble-damages actions into massive multiparty litigations involving many levels of distribution and including large classes of ultimate consumers remote from the defendant. In treble-damages actions by ultimate consumers, the overcharge would have to be apportioned among the relevant wholesalers, retailers, and other middlemen, whose representatives presumably should be joined.23 And in suits by direct purchasers or middlemen, the interests of ultimate consumers are similarly implicated.24
23
There is thus a strong possibility that indirect purchasers remote from the defendant would be parties to virtually every treble-damages action (apart from those brought against defendants at the retail level). The Court's concern in Hanover Shoe to avoid weighing down treble-damages actions with the "massive evidence and complicated theories," 392 U.S., at 493, 88 S.Ct., at 2231, involved in attempting to establish a pass-on defense against a direct purchaser applies a fortiori to the attempt to trace the effect of the overcharge through each step in the distribution chain from the direct purchaser to the ultimate consumer. We are no more inclined than we were in Hanover Shoe to ignore the burdens that such an attempt would impose on the effective enforcement of the antitrust laws.
24
(7) Under an array of simplifying assumptions, economic theory provides a precise formula for calculating how the overcharge is distributed between the overcharged party (passer) and its customers (passees). If the market for the passer's product is perfectly competitive; if the overcharge is imposed equally on all of the passer's competitors; and if the passer maximizes its profits, then the ratio of the shares of the overcharge borne by passee and passer will equal the ratio of the elasticities of supply and demand in the market for the passer's product.25 Even if these assumptions are accepted, there remains a serious problem of measuring the relevant elasticities the percentage change in the quantities of the passer's product demanded and supplied in response to a one percent change in price. In view of the difficulties that have been encountered, even in informal adversary proceedings, with the statistical techniques used to estimate these concepts, see Finkelstein, Regression Models in Administrative Proceedings, 86 Harv.L.Rev. 1442, 1444 (1973), it is unrealistic to think that elasticity studies introduced by expert witnesses will resolve the pass-on issue. We need look no further than our own difficulties with sophisticated statistical methodology that were evident last Term in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and its companion cases. See id., at 184-185, 96 S.Ct., at 2930-2931 (joint opinion of Stewart, Powell, and Stevens, JJ.); 428 U.S. 227, 233-236, 96 S.Ct. 2971, 2974-2975, 49 L.Ed.2d 904 (Marshall, J., dissenting); Roberts v. Louisiana, 428 U.S. 325, 354-355, 96 S.Ct. 3001, 3016-3017, 49 L.Ed.2d 974 (1976) (White, J., dissenting).
25
More important, as the Hanover Shoe Court observed, 392 U.S., at 493, 88 S.Ct., at 2231, "in the real economic world rather than an economist's hypothetical model," the latter's drastic simplifications generally must be abandoned. Overcharged direct purchasers often sell in imperfectly competitive markets. They often compete with other sellers that have not been subject to the overcharge; and their pricing policies often cannot be explained solely by the convenient assumption of profit maximization.26 As we concluded in Hanover Shoe, 392 U.S., at 492, 88 S.Ct., at 2231, attention to "sound laws of economics" can only heighten the awareness of the difficulties and uncertainties involved in determining how the relevant market variables would have behaved had there been no overcharge.27
26
It is quite true that these difficulties and uncertainties will be less substantial in some contexts than in others. There have been many proposals to allow pass-on theories in some of these contexts while preserving the Hanover Shoe rule in others. Respondents here argue, not without support from some lower courts,28 that pass-on theories should be permitted for middlemen that resell goods without altering them and for contractors that add a fixed percentage markup to the cost of their materials in submitting bids. Brief for Respondents 9-30; Tr. of Oral Arg. 36-48. Exceptions to the Hanover Shoe rule have also been urged for other situations in which most of the overcharge is purportedly passed on for example, where a price-fixed good is a small but vital input into a much larger product, making the demand for the price-fixed good highly inelastic. Compare Philadelphia Housing Auth. v. American Radiator & Standard Sanitary Corp., 50 F.R.D. 13 (ED Pa.1970), aff'd sub nom. Mangano v. American Radiator & Standard Sanitary Corp., 438 F.2d 1187 (CA3 1971), with In re Master Key Antitrust Litigation, 1973-2 Trade Cas. P 74,680 (Conn.). See Schaefer, supra, n. 25, at 918-925.
27
We reject these attempts to carve out exceptions to the Hanover Shoe rule for particular types of markets.29 An exception allowing evidence of pass-on by middlemen that resell the goods they purchase of course would be of no avail to respondents, because the contractors that allegedly passed on the overcharge on the block incorporated it into buildings. See supra, at 735. An exception for the contractors here on the ground that they purport to charge a fixed percentage above their costs would substantially erode the Hanover Shoe rule without justification. Firms in many sectors of the economy rely to an extent on cost-based rules of thumb in setting prices. See F. Scherer, Industrial Market Structure and Economic Performance 173-179 (1970). These rules are not adhered to rigidly, however; the extent of the markup (or the allocation of costs) is varied to reflect demand conditions. Id., at 176-177. The intricacies of tracing the effect of an overcharge on the purchaser's prices, costs, sales, and profits thus are not spared the litigants.
28
More generally, the process of classifying various market situations according to the amount of pass-on likely to be involved and its susceptibility of proof in a judicial forum would entail the very problems that the Hanover Shoe rule was meant to avoid. The litigation over where the line should be drawn in a particular class of cases would inject the same "massive evidence and complicated theories" into treble-damages proceedings, albeit at a somewhat higher level of generality. As we have noted, supra, at 735-736, Hanover Shoe itself implicitly discouraged the creation of exceptions to its rule barring pass-on defenses, and we adhere to the narrow scope of exemption indicated by our decision there.
29
The concern in Hanover Shoe for the complexity that would be introduced into treble-damages suits if pass-on theories were permitted was closely related to the Court's concern for the reduction in the effectiveness of those suits if brought by indirect purchasers with a smaller stake in the outcome than that of direct purchasers suing for the full amount of the overcharge. The apportionment of the recovery throughout the distribution chain would increase the overall costs of recovery by injecting extremely complex issues into the case; at the same time such an apportionment would reduce the benefits to each plaintiff by dividing the potential recovery among a much larger group. Added to the uncertainty of how much of an overcharge could be established at trial would be the uncertainty of how that overcharge would be apportioned among the various plaintiffs. This additional uncertainty would further reduce the incentive to sue. The combination of increasing the costs and diffusing the benefits of bringing a treble-damages action could seriously impair this important weapon of antitrust enforcement.
30
(8) We think the longstanding policy of encouraging vigorous private enforcement of the antitrust laws, see, e. g., Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 139, 88 S.Ct. 1981, 1984, 20 L.Ed.2d 982 (1968), supports our adherence to the Hanover Shoe rule, under which direct purchasers are not only spared the burden of litigating the intricacies of pass-on but also are permitted to recover the full amount of the overcharge. We recognize that direct purchasers sometimes may refrain from bringing a treble-damages suit for fear of disrupting relations with their suppliers.30 But on balance, and until there are clear directions from Congress to the contrary, we conclude that the legislative purpose in creating a group of " 'private attorneys general' " to enforce the antitrust laws under § 4, Hawaii v. Standard Oil Co. of Cal., 405 U.S., at 262, 92 S.Ct., at 891, is better served by holding direct purchasers to be injured to the full extent of the overcharge paid by them than by attempting to apportion the overcharge among all that may have absorbed a part of it.
31
(9) It is true that, in elevating direct purchasers to a preferred position as private attorneys general, the Hanover Shoe rule denies recovery to those indirect purchasers who may have been actually injured by antitrust violations. Of course, as Mr. Justice BRENNAN points out in dissent, "from the deterrence standpoint, it is irrelevant to whom damages are paid, so long as some one redresses the violation." Post, at 760. But § 4 has another purpose in addition to deterring violators and depriving them of "the fruits of their illegality," Hanover Shoe, 392 U.S., at 494, 88 S.Ct., at 2232; it is also designed to compensate victims of antitrust violations for their injuries. E. g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485-486, 97 S.Ct. 690, 695-696, 50 L.Ed.2d 701 (1977). Hanover Shoe does further the goal of compensation to the extent that the direct purchaser absorbs at least some and often most of the overcharge. In view of the considerations supporting the Hanover Shoe rule, we are unwilling to carry the compensation principle to its logical extreme by attempting to allocate damages among all "those within the defendant's chain of distribution," post, at 761, especially because we question the extent to which such an attempt would make individual victims whole for actual injuries suffered rather than simply depleting the overall recovery in litigation over pass-on issues. Many of the indirect purchasers barred from asserting pass-on claims under the Hanover Shoe rule have such a small stake in the lawsuit that even if they were to recover as part of a class, only a small fraction would be likely to come forward to collect their damages.31 And given the difficulty of ascertaining the amount absorbed by any particular indirect purchaser, there is little basis for believing that the amount of the recovery would reflect the actual injury suffered.
32
For the reasons stated, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
33
So ordered.
34
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice BLACKMUN join, dissenting.
35
Respondent State of Illinois brought this treble-damages civil antitrust action under § 4 of the Clayton Act on behalf of itself and various local governmental entities in the Greater Chicago area alleging that an overcharge in the price of concrete block used in the construction of public buildings was made by the petitioners, manufacturers and sellers of concrete block, pursuant to a price-fixing conspiracy in violation of § 1 of the Sherman Act, 15 U.S.C. § 1.1 Section 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, broadly provides: "(A) person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor . . . and shall recover threefold the damages by him sustained . . . ."
36
Decisions of the Court defining the reach of § 4 have been consistent with its broad objectives: to compensate victims of antitrust violations and to deter future violations. The Court has stated that § 4 "does not confine its protection to consumers, or to purchasers, or to competitors, or to sellers . . . (but) is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated." Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 1006, 92 L.Ed. 1328 (1948).2 Today's decision that § 4 affords a remedy only to persons who purchase directly from an antitrust offender is a regrettable retreat from that line of cases. Section 4 was clearly intended to operate to protect individual consumers who purchase through middlemen. Indeed, Congress acted on the premise that § 4 gave a cause of action to indirect as well as direct purchasers when it recently enacted the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 90 Stat. 1394-1396, 15 U.S.C. § 15c et seq. (1976 ed.), and authorized state attorneys general to sue as parens patriae to recover damages on behalf of citizens of their various States.
37
Today's decision flouts Congress' purpose and severely undermines the effectiveness of the private treble-damages action as an instrument of antitrust enforcement. For in many instances, the brunt of antitrust injuries is borne by indirect purchasers, often ultimate consumers of a product, as increased costs are passed along the chain of distribution.3 In these instances, the Court's decision frustrates both the compensation and deterrence objectives of the treble-damages action. Injured consumers are precluded from recovering damages from manufacturers, and direct purchasers who act as middlemen have little incentive to sue suppliers so long as they may pass on the bulk of the illegal overcharges to the ultimate consumers. This frustration of the congressional scheme is in no way mandated by Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). To the contrary, the same considerations that Hanover Shoe held required rejection of the defendant's argument there, that because plaintiff had passed on cost increases to consumers in the form of higher prices defendant should be relieved of liability especially the consideration that it is essential to the public interest to preserve the effectiveness of the private treble-damages action require affirmance of the decision below construing § 4 to authorize respondents' suit.
38
* In Hanover Shoe, supra, the Court held that a defendant in a treble-damages action could not escape liability, except in very limited circumstances,4 by proof that the plaintiff had passed on illegal overcharges to others farther along in the chain of distribution.5 The defendant in Hanover Shoe, United Shoe, argued that Hanover was not entitled to recover damages because the increased price it had paid for United's equipment6 had in turn been reflected in the increased price at which Hanover had sold its shoes to the consuming public. The Court held that several reasons supported its conclusion that this defense was not available to United despite "the argument that sound laws of economics require" its recognition, 392 U.S., at 492, 88 S.Ct., at 2231. First, the Court followed earlier cases holding that the "victim of an overcharge is (immediately) damaged within the meaning of § 4 to the extent of that overcharge." Id., at 491, 88 S.Ct., at 2230. The particularly apt precedent supporting this proposition was Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 38 S.Ct. 186, 62 L.Ed. 451 (1918),7 where a pass-on defense had been rejected because of "(t)he general tendency of the law in regard to damages at least, . . . not to go beyond the first step," and the Court's belief that "(t)he carrier ought not to be allowed to retain his illegal profit, and the only one who can take it from him is the one that alone was in relation with him, and from whom the carrier took the sum. . . ." Id., at 533-534, 38 S.Ct., at 186. In other words, the requirement of privity between plaintiff and defendant was a reason to deny defendant the pass-on defense, since otherwise the defendant would be able to profit by his own wrong. Hanover Shoe cannot be read, however, as limiting actions to parties in privity with one another. That was made clear in Perkins v. Standard Oil Co., 395 U.S. 642, 648, 89 S.Ct. 1871, 1874, 23 L.Ed.2d 599 (1969), decided the next Term, a price discrimination case in which the Court traced an illegal overcharge through several levels in the chain of distribution, ultimately holding that a plaintiff seeking to recover damages need show only a "causal connection between the price discrimination in violation of the (antitrust laws) and the injury suffered. . . . If there is sufficient evidence in the record to support an inference of causation, the ultimate conclusion as to what that evidence proves is for the jury." Darnell-Taenzer does, however, support Hanover Shoe's denial of the pass-on defense for the other reasons relied upon in Hanover Shoe: the difficulty of proving and quantifying a pass-on, and the role of the treble-damages action as the most effective means of antitrust enforcement. 392 U.S., at 492-494, 88 S.Ct., at 2231-2232.
39
The Court correctly discerned that the difficulty of reconstructing hypothetical pricing decisions,8 would aggravate the already complex nature of antitrust litigation since pass-on defenses would become commonplace whenever the chain of distribution extended beyond the plaintiff. This would lessen the effectiveness of the treble-damages action, since ultimate consumers individually often suffer only minor damages and therefore have little incentive to bring suit. Limiting defendants' liability to the loss of profits suffered by direct purchasers would thus allow the antitrust offender to avoid having to pay the full social cost of his illegal conduct in many cases in which indirect purchasers failed to bring suit. Consequently,
40
"those who violate the antitrust laws by price fixing or monopolizing would retain the fruits of their illegality because no one was available who would bring suit against them. Treble damage actions, the importance of which the Court has many times emphasized, would be substantially reduced in effectiveness." Id., at 494, 88 S.Ct., at 2232.
41
Hanover Shoe thus confronted the Court with the choice, as had been true in Darnell-Taenzer, of interpreting § 4 in a way that might overcompensate the plaintiff, who had certainly suffered some injury, or of defining it in a way that under-deters the violator by allowing him to retain a portion of his ill-gotten overcharges. The Court chose to interpret § 4 so as to allow the plaintiff to recover for the entire overcharge. This choice was consistent with recognition of the importance of the treble-damages action in deterring antitrust violations.9 But Hanover Shoe certainly did not imply that an indirect purchaser would not also have a cause of action under § 4 when the illegal overcharges were passed on to him.
42
Despite the superficial appeal of the argument that Hanover Shoe should be applied "consistently," thus precluding plaintiffs and defendants alike from proving that increased costs were passed along the chain of distribution, there are sound reasons for treating offensive and defensive passing-on cases differently. The interests at stake in "offensive" passing-on cases, where the indirect purchasers sue for damages for their injuries, are simply not the same as the interests at stake in the Hanover Shoe, or "defensive" passing-on situation. There is no danger in this case, for example, as there was in Hanover Shoe, that the defendant will escape liability and frustrate the objectives of the treble-damages action. Rather, the same policies of insuring the continued effectiveness of the treble-damages action and preventing wrongdoers from retaining the spoils of their misdeeds favor allowing indirect purchasers to prove that overcharges were passed on to them. Hanover Shoe thus can and should be limited to cases of defensive assertion of the passing-on defense to antitrust liability, where direct and indirect purchasers are not parties in the same action.10 I fully agree with the observation:
43
"The attempt to transform a rejection of a defense because it unduly hampers antitrust enforcement into a reason for a complete refusal to entertain the claims of a certain class of plaintiffs seems an ingenious attempt to turn the decision (in Hanover Shoe ) and its underlying rationale on its head." In re Master Key Antitrust Litigation, 1973-2 Trade Cas. P 74,680, pp. 94,978-94,979 (Conn.).
II
A.
44
Today's decision goes far to frustrate Congress' objectives in creating the treble-damages action. Treble-damages actions were first authorized under § 7 of the Sherman Act, 26 Stat. 210. The legislative history of this section shows that it was conceived primarily as a remedy for "(t)he people of the United States as individuals," especially for consumers. See, e. g., 21 Cong.Rec. 1767-1768 (1890) (remarks of Sen. George); see also id., at 2612 (Sens. Teller and Reagan), 2615 (Sen. Coke), 2640 (Sen. Spooner).11 In the Clayton Act of 1914, Congress extended the § 7 remedy to persons injured by "any violation of the antitrust laws." See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 486 n. 10, 97 S.Ct. 690, 696 n. 10, 50 L.Ed.2d 701 (1977), citing H.R.Rep.No.627, 63d Cong., 2d Sess., 14 (1914). 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.' "12 Brunswick, supra, at 486 n. 10, 97 S.Ct., at 696 n. 10, quoting 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. See also the House debates following the conference committee report. Id., at 16274-16275 (Rep. Webb), 16317-16319 (Rep. Floyd).
45
The Court has interpreted § 4 broadly, this in recognition of the plainly stated congressional objective, Northern Pacific R. Co. v. United States, 356 U.S. 1, 4, 78 S.Ct. 514, 517, 2 L.Ed.2d 545 (1958), that the private treble-damages action play a paramount role in the enforcement of the fundamental economic policy of the Nation, Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130-131, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969); Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 318, 85 S.Ct. 1473, 1477, 14 L.Ed.2d 405 (1965), and has concluded 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." Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 139, 88 S.Ct. 1981, 1984, 20 L.Ed.2d 982 (1968). The federal courts have accordingly been cautioned "not (to) add requirements to burden the private litigant beyond what is specifically set forth by Congress in (the antitrust) laws," Radovich v. National Football League, 352 U.S. 445, 454, 77 S.Ct. 390, 395, 1 L.Ed.2d 456 (1957), and express approval has been given the " 'tendency of the courts . . . to find some way in which damages can be awarded where a wrong has been done. Difficulty of ascertainment is no longer confused with right of recovery' for a proven invasion of the plaintiff's rights." Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265-266, 66 S.Ct. 574, 580, 90 L.Ed. 652 (1946). See also Zenith Radio Corp. v. Hazeltine Research, Inc., supra, 395 U.S., at 130-131, 89 S.Ct., at 1580; Perma Life Mufflers, Inc. v. International Parts Corp., supra ; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S., at 494, 88 S.Ct., at 2232. And Radiant Burners, Inc. v. Peoples Gas, Light & Coke Co., 364 U.S. 656, 660, 81 S.Ct. 365, 367, 5 L.Ed.2d 358 (1961), emphasized that to plead a cause of action under § 4 "allegations adequate to show a violation and . . . that plaintiff was damaged thereby are all the law requires."
B
46
The recently enacted Hart-Scott-Rodino Antitrust Improvements Act of 1976 was expressly adopted to create "an effective mechanism to permit consumers to recover damages for conduct which is prohibited by the Sherman Act, by giving State attorneys general a cause of action (to sue as parens patriae on behalf of the States' citizens) against antitrust violators." S.Rep.No.94-803, p. 6 (1976). Title III of the new Act responded to the holding of Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972), that the Clayton Act does not authorize a State to sue for damages for an injury to its general economy allegedly attributable to a violation of the antitrust laws. The Senate Report accompanying the new Act expressly found that "(t)he economic burden of most antitrust violations is borne by the consumer in the form of higher prices for goods and services," S.Rep.No.94-803, supra, at 39, and it is clear that the new Act is intended to provide a remedy for injured consumers whether or not they purchased directly from the violator. The Senate Report states, id., at 42:
47
"A direct cause of action is granted the States to avoid the inequities and inconsistencies of restrictive judicial interpretations. . . . Section 4C is intended to assure that consumers are not precluded from the opportunity of proving the amount of their damage and to avoid problems with respect to manageability (of class actions), standing, privity, target area, remoteness, and the like."13 (Emphasis supplied.)
48
Representative Rodino, a sponsor, stated during the House debates:
49
"(A)ssuming the State attorney general proves a violation, and proves that an overcharge was 'passed on' to the consumers, injuring them 'in their property'; that is, their pocketbooks recoveries are authorized by the compromise bill whether or not the consumers purchased directly from the price fixer, or indirectly, from intermediaries, retailers, or middlemen. The technical and procedural argument that consumers have no 'standing' whenever they are not 'in privity' with the price fixer, and have not purchased directly from him, is rejected by the compromise bill. Opinions relying on this procedural technicality . . . are squarely rejected by the compromise bill." 122 Cong.Rec. H10295 (daily ed. Sept. 16, 1976).
50
It is difficult to see how Congress could have expressed itself more clearly. Even if the question whether indirect purchasers could recover for damages passed on to them was open before passage of the 1976 Act, and I do not believe that it was, Congress' interpretation of § 4 in enacting the parens patriae provision should resolve it in favor of their authority to sue. Indeed, the House Report accompanying the bill actually referred to the opinion of the District Court in this case as an example of the correct answer. N. 13, supra. The Court's tortuous efforts to impose a "consistency" upon this area of the law that Congress has so clearly rejected is a return to the "legal somersaults and twistings and turnings" of the Court's earlier opinions that ultimately led to the passage of the Clayton Act in 1914 to salvage the ailing Sherman Act. See 51 Cong.Rec. 9086 (1914) (remarks of Rep. Kelly).
III
51
Hanover Shoe correctly observed that the necessity of tracing a cost increase through several levels of a chain of distribution "would often require additional long and complicated proceedings involving massive evidence and complicated theories." 392 U.S., at 493, 88 S.Ct., at 2231. But this may be said of almost all antitrust cases. Hanover Shoe itself highlights this unavoidable complication, in that it requires the plaintiff to prove a probable course of events which would have occurred but for the violation.14 In essence, estimating the amount of damages passed on to an indirect purchaser is no different from and no more complicated than estimating what the middleman's selling price would have been, absent the violation. See ante, at 733, n. 13.
52
Nor should the fact that the price-fixed product in this case (the concrete block) was combined with another product (the buildings) before resale operate as an absolute bar to recovery. It may well be true as the State claims, that the cost of the block was included separately in the project bids and therefore can be factored out from the price of the building with relative certainty. In any case, this is a factual matter to be determined based on the strength of the plaintiff's evidence.15 See, e. g., In re Western Liquid Asphalt Cases, 487 F.2d 191 (CA9 1973), cert. denied sub nom. Standard Oil of Cal. v. Alaska, 415 U.S. 919, 94 S.Ct. 1419, 39 L.Ed.2d 474 (1974). Admittedly, there will be many cases in which the plaintiff will be unable to prove that the overcharge was passed on. In others, the portion of the overcharge passed on may be only approximately determinable. But again, this problem hardly distinguishes this case from other antitrust cases. Reasoned estimation is required in all antitrust cases, but "while the damages (in such cases) may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate." Story Parchment Co. v. Paterson Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931). See also Bigelow v. RKO Radio Pictures, 327 U.S., at 266, 66 S.Ct., at 580; Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 379, 47 S.Ct. 400, 405, 71 L.Ed. 684 (1927). Lack of precision in apportioning damages between direct and indirect purchasers is thus plainly not a convincing reason for denying indirect purchasers an opportunity to prove their injuries and damages. Moreover, from the deterrence standpoint, it is irrelevant to whom damages are paid, so long as someone redresses the violation. Antitrust violators are equally deterred whether the judgments against them are in favor of direct or indirect purchasers. Hanover Shoe said as much. The Court's decision recognized that some plaintiffs would recover more than their due, but concluded that the necessity of assuring that someone recover and thus deter future violations and prevent the antitrust offender from profiting by his illegal overcharge outweighed any resulting injustice.16
53
I concede that despite the broad wording of § 4 there is a point beyond which the wrongdoer should not be held liable. See, e. g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977); Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). Courts have therefore developed various tests of antitrust "standing," not unlike the concept of proximate cause in tort law, to define that point. The definition has been variously articulated, usually in terms of two tests. The most restrictive test focuses on the directness of the injury;17 the more liberal, and more widely accepted, on whether the plaintiff is within the "target area" of the defendant's violation.18 But if the broad language of § 4 means anything, surely it must render the defendant liable to those within the defendant's chain of distribution. It would indeed be "paradoxical to deny recover to the ultimate consumer while permitting the middlemen a windfall recovery." P. Areeda, Antitrust Analysis: Problems, Text, Cases 75 (2d ed. 1974).
IV
54
I acknowledge some abstract merit in the argument that to allow indirect purchasers to sue, while, at the same time, precluding defendants from asserting pass-on defenses in suits by direct purchasers, subjects antitrust defendants to the risk of multiple liability. But as a practical matter, existing procedural mechanisms can eliminate this danger in most instances. Even though, as the Court says, no procedure currently exists which can eliminate the possibility entirely, ante, at 731, n. 11, the hypothetical possibility that a few defendants might be subjected to the danger of multiple liability does not, in my view, justify erecting a bar against all recoveries by indirect purchasers without regard to whether the particular case presents a significant danger of double recovery. The "double recovery" specter was argued in the Congress that passed the Hart-Scott-Rodino Act, and was rejected. The Senate Report recorded the Act's purpose to codify the holding of the Court of Appeals for the Ninth Circuit in In re Western Liquid Asphalt Cases, supra :
55
" 'We therefore see no problem of double recovery, and we believe that if this difficulty should arise in some other connection, the district court will be able to fashion relief accordingly. In addition to the court's control over its decree, numerous devices exist. We note that the consolidation of cases, which has already occurred, is one means of averting duplicitous awards. The short, four-year statute of limitations is another; later suits, after final judgment herein, are unlikely. 15 U.S.C. § 15b. In other cases, it may be that statutory interpleader, 28 U.S.C. § 1335, could be used by antitrust defendants to avoid double liability. If necessary, special masters may be appointed to handle complex cases. Finally, there are the doctrines of res judicata and collateral estoppel and procedures for compulsory joinder. The day is long past when courts, particularly federal courts, will deny relief to a deserving plaintiff merely because of procedural difficulties or problems of apportioning damages.'
56
"We would prefer to place the burden of proving apportionment upon appellees, rather than deny all recovery to appellants. Such a burden would be the consequence of appellees' illegal acts, not appellants' suits. Where the choice is between a windfall to intermediaries or letting guilty defendants go free, liability is imposed. Hanover Shoe, supra, 392 U.S. at 494, 88 S.Ct. 2284. So, too, between ultimate purchasers and defendants." S.Rep. No. 94-803, p. 44 (1976), quoting 487 F.2d, at 201 (citation omitted).
57
Moreover, the possibility of multiple recovery arises in only two situations: (1) where suits by direct and indirect purchasers are pending at the same time but in different courts; and (2) where additional suits are filed after an award of damages based on the same violation in a prior suit.19 In the first situation, the United States, Brief as Amicus Curiae 25, cogently points out that district courts may make use of the alternatives suggested by the Manual for Complex Litigation, 1 (pt. 2) J. Moore, Federal Practice (1976): district courts may use the intradistrict transfer power created by 28 U.S.C. § 1404(b), coordinate pretrial proceedings of cases pending in different districts, or transfer cases to a single district pursuant to § 1404(a). In addition, the Judicial Panel on Multidistrict Litigation is empowered by 28 U.S.C. § 1407 to transfer cases involving common questions of fact to any district for coordinated pretrial proceedings upon its determination that the transfer "will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions." After pretrial transfers under this section, cases can be consolidated and transferred to the same district for trial pursuant to the transfer power under § 1404(a).20 A further device mentioned in Western Liquid Asphalt is statutory interpleader under 28 U.S.C. § 1335, by which the defendant can bring all potential plaintiffs into the same court and require them to litigate inter se to determine their appropriate shares of the total recovery.21
58
True, there is a greater hypothetical danger of multiple recovery where suits are independently instituted after an earlier suit based on the same violation has proceeded to judgment.22 But even here the likelihood that defendants will be subjected to multiple liability is, as a practical matter, remote. The extended nature of antitrust actions, often involving years of discovery, combines with the short four-year statute of limitations to make it impractical for potential plaintiffs to sit on their rights until after entry of judgment in the earlier suit.
59
The Court today regrettably weakens the effectiveness of the private treble-damages action as a deterrent to antitrust violations by, in most cases, precluding consumers from recovering for antitrust injuries. For in many instances, consumers, although indirect purchasers, bear the brunt of antitrust violations. To deny them an opportunity for recovery is particularly indefensible when direct purchasers, acting as middlemen, and ordinarily reluctant to sue their suppliers23 pass on the bulk of their increased costs to consumers farther along the chain of distribution. Congress has given us a clear signal that § 4 is not to be read to have the restrictive scope ascribed to it by the Court today. I would follow the congressional understanding and therefore would affirm.24
60
Mr. Justice BLACKMUN, dissenting.
61
I regard Mr. Justice BRENNAN'S dissenting opinion as persuasive and convincing, and I join it without hesitation.
62
I add these few sentences only to say that I think the plaintiffs-respondents in this case, which they now have lost, are the victims of an unhappy chronology. If Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), had not preceded this case, and were it not "on the books," I am positive that the Court today would be affirming, perhaps unanimously, the judgment of the Court of Appeals. The policy behind the Antitrust Acts and all the signs point in that direction, and a conclusion in favor of indirect purchasers who could demonstrate injury would almost be compelled.
63
But Hanover Shoe is on the books, and the Court feels that it must be "consistent" in its application of pass-on. That, for me, is a wooden approach, and it is entirely inadequate when considered in the light of the objectives of the Sherman and Clayton Acts. The Hart-Scott-Rodino Antitrust Improvements Act of 1976 tells us all that is needed as to Congress' present understanding of the Acts. Nevertheless, we must now await still another statute which, as the Court acknowledges, ante, at 734 n. 14, the Congress may adopt. One regrets that it takes so long and so much repetitious effort to achieve, and have this Court recognize, the obvious congressional aim.
1
Section 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, provides:
"Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."
2
The Court cited, as an example of when a pass-on defense might be permitted, the situation where "an overcharged buyer has a pre-existing 'cost-plus' contract, thus making it easy to prove that he has not been damaged . . . ." 392 U.S., at 494, 88 S.Ct., at 2232. See infra, at 735-736.
3
The Court explained the economic uncertainties and complexities involved in proving pass-on as follows:
"A wide range of factors influence a company's pricing policies. Normally the impact of a single change in the relevant conditions cannot be measured after the fact; indeed a businessman may be unable to state whether, had one fact been different (a single supply less expensive, general economic conditions more buoyant, or the labor market tighter, for example), he would have chosen a different price. Equally difficult to determine, in the real economic world rather than an economist's hypothetical model, is what effect a change in a company's price will have on its total sales. Finally, costs per unit for a different volume of total sales are hard to estimate. Even if it could be shown that the buyer raised his price in response to, and in the amount of, the overcharge and that his margin of profit and total sales had not thereafter declined, there would remain the nearly insuperable difficulty of demonstrating that the particular plaintiff could not or would not have raised his prices absent the overcharge or maintained the higher price had the overcharge been discontinued. Since establishing the applicability of the passing-on defense would require a convincing showing of each of these virtually unascertainable figures, the task would normally prove insurmountable. On the other hand, it is not unlikely that if the existence of the defense is generally confirmed, antitrust defendants will frequently seek to establish its applicability. Treble-damage actions would often require additional long and complicated proceedings involving massive evidence and complicated theories." 392 U.S., at 492-493, 88 S.Ct., at 2231. (Footnote omitted.)
4
Section 1 of the Sherman Act, c. 647, 26 Stat. 209, as amended, 15 U.S.C. § 1, provides in relevant part:
"Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal . . .."
5
Private treble-damages actions brought by masonry contractors, general contractors, and private builders were settled, without prejudice to this suit. 536 F.2d, at 1164.
6
The responses to petitioners' interrogatories indicated that only four of the plaintiffs represented by the State purchased concrete block directly from one of the petitioners. 67 F.R.D. 461, 463 (N.D.Ill.1975). Only 7% of the 700 public entities named as plaintiffs were apparently able to state the cost of the concrete block used in their building projects. Brief for Petitioners 5 n. **. In the only example cited to us by the parties, the cost of the concrete block was reported as less than one-half of one percent of the total cost of the project. Id., at 21 n. *.
7
The District Court based its grant of summary judgment against the indirect purchaser plaintiffs not on the ground that this Court's construction of § 4 in Hanover Shoe barred their attempt to show that the masonry and general contractors passed on the overcharge to them, but rather on the ground that these indirect purchasers lacked standing to sue for an overcharge on one product concrete block that was incorporated by the masonry and general contractors into an entirely new and different product a building. 67 F.R.D., at 467-468. Although the Court of Appeals held that these indirect purchasers did have standing to sue for damages under § 4, it agreed with the District Court's reading of Hanover Shoe. 536 F.2d, at 1164-1167. Because we find Hanover Shoe dispositive here, we do not address the standing issue, except to note, as did the Court of Appeals below, 536 F.2d, at 1166, that the question of which persons have been injured by an illegal overcharge for purposes of § 4 is analytically distinct from the question of which persons have sustained injuries too remote to give them standing to sue for damages under § 4. See Handler & Blechman, Antitrust and the Consumer Interest: The Fallacy of Parens Patriae and A Suggested New Approach, 85 Yale L.J. 626, 644-645 (1976).
8
Compare Mangano v. American Radiator & Standard Sanitary Corp., 438 F.2d 1187 (CA3 1971), aff'g Philadelphia Housing Auth. v. American Radiator & Standard Sanitary Corp., 50 F.R.D. 13 (ED Pa.1970), with In re Western Liquid Asphalt Cases, 487 F.2d 191 (CA9 1973), cert. denied, sub nom. Standard Oil Co. of Cal. v. Alaska, 415 U.S. 919, 94 S.Ct. 1419, 39 L.Ed.2d 474 (1974); West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079 (CA2), cert. denied sub nom. Cotler Drugs, Inc. v. Chas. Pfizer & Co., 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971), and the decision below, Illinois v. Ampress Brick Co., 536 F.2d 1163.
9
See infra, at 734-735.
10
Post, at 753 (BRENNAN, J., dissenting); post, at 765-766 (BLACKMUN, J., dissenting); Brief for United States as Amicus Curiae 4-6, 15-21; Tr. of Oral Arg. 50-54, 57-60; West Virginia v. Chas. Pfizer & Co., 440 F.2d, at 1086-1088; Boshes v. General Motors Corp., 59 F.R.D. 589, 592-598 (ND Ill.1973); In re Master Key Antitrust Litigation, 1973-2 Trade Cas. P 74,680, p. 94,978 (Conn.); Carnivale Bag Co. v. Slide-Rite Mfg. Corp., 395 F.Supp. 287, 290-291 (SDNY 1975). See also Brief for State of California as Amicus Curiae 6-12.
11
In recognition of the need to avoid duplicative recoveries, courts adopting the view that pass-on theories should not be equally available to plaintiffs and defendants have agreed that defendants should be allowed to assert a pass-on defense against a direct purchaser if an indirect purchaser is also attempting to recover on a pass-on theory in the same lawsuit. E. g., In re Western Liquid Asphalt Cases, 487 F.2d, at 200-201; West Virginia v. Chas. Pfizer & Co., Inc., 440 F.2d, at 1088. See also Comment, Standing to Sue in Antitrust Cases: The Offensive Use of Passing-On, 123 U.Pa.L.Rev. 976, 995-998 (1975); Comment, Mangano and Ultimate-Consumer Standing: The Misuse of the Hanover Doctrine, 72 Colum.L.Rev. 394, 410 (1972); Brief for United States as Amicus Curiae 25. Various procedural devices, such as the Multidistrict Litigation Act, 28 U.S.C. § 1407, and statutory interpleader, 28 U.S.C. § 1335, are relied upon to bring indirect and direct purchasers together in one action in order to apportion damages among them and thereby reduce the risk of duplicative recovery. These procedural devices cannot protect against multiple liability where the direct purchasers have already recovered by obtaining a judgment or by settling, as is more likely (and as occurred here, see n. 5, supra); acknowledging that the risk of multiple recoveries is inevitably increased by allowing offensive but not defensive use of pass-on, e. g., Comment, 123 U.Pa.L.Rev., supra, at 994, proponents of this approach ultimately fall back on the argument that it is better for the defendant to pay sixfold or more damages than for an injured party to go uncompensated. E. g., Comment, 72 Colum.L.Rev., supra, at 411; Tr. of Oral Arg. 58 ("a little slopover on the shoulders of the wrongdoers . . . is acceptable"). We do not find this risk acceptable.
Moreover, even if ways could be found to bring all potential plaintiffs together in one huge action, the complexity thereby introduced into treble-damages proceedings argues strongly for retaining the Hanover Shoe rule. See Part III, infra.
12
That this rationale was more important in the decision to bar the pass-on defense than the second reason the concern that if pass-on defenses were permitted indirect purchasers would lack the incentive to sue and antitrust violators would retain their ill-gotten gains, see supra, at 725-726, is shown by the fact that the Court recognized an exception for pre-existing cost-plus contracts, which "mak(e) it easy to prove that (the direct purchaser) has not been damaged." 392 U.S., at 494, 88 S.Ct., at 2232. (Emphasis added.) The amount of the stake that the customers of the direct purchaser have in a lawsuit against the overcharger is not likely to depend on whether they buy under a cost-plus contract or in a competitive market, but the Court allowed a pass-on defense in the former situation because the pre-existing cost-plus contract makes easy the normally complicated task of demonstrating that the overcharge has not been absorbed by the direct purchaser. See Note, The Effect of Hanover Shoe on the Offensive Use of the Passing-on Doctrine, 46 So.Cal.L.Rev. 98, 108 (1972).
13
Offensive use of pass-on by the last purchaser in the distribution chain is simpler in one respect than defensive use of pass-on against a direct purchaser that sells a product to other customers. In the latter case, even if the defendant shows that as a result of the overcharge the direct purchaser increased its price by the full amount of the overcharge, the direct purchaser may still claim injury from a reduction in the volume of its sales caused by its higher prices. This additional element of injury from reduced volume is not present in the suit by the final purchaser of the overcharged goods, where the issue regarding injury will be whether the defendant's overcharge caused the plaintiff to pay a higher price for whatever it purchased. But the final purchaser still will have to trace the overcharge through each step in the distribution chain. In our view, the difficulty of reconstructing the pricing decisions of intermediate purchasers at each step in the chain beyond the direct purchaser generally will outweigh any gain in simplicity from not having to litigate the effects of the passed-on overcharge on the direct purchaser's volume.
14
We are urged to defer to evidence in the legislative history of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 90 Stat. 1394-1396, 15 U.S.C. § 15c et seq. (1976 ed.), that Congress understood Hanover Shoe as applying only to defendants. Post, at 756-758 (BRENNAN, J., dissenting); Brief for 47 States as Amici Curiae 14-15, n. 6; Brief for United States as Amicus Curiae 14-15, and n. 12. The House Report (apparently viewing the issue as one of standing, cf. n. 7, supra) endorsed the Ninth Circuit's view of "the pro-enforcement thrust of Hanover Shoe " in In re Western Liquid Asphalt Cases, supra, and criticized lower court decisions barring pass-on arguments by plaintiffs. H.R.Rep. No. 94-499, p. 6 n. 4 (1975), 1976 U.S.Code Cong. & Admin.News, pp. 2572, 2576. In addition, one of the sponsors of this legislation, Representative Rodino, clearly assumed that the issue of offensive use of
pass-on under § 4 would be resolved favorably to plaintiffs by this Court. See 122 Cong.Rec. H10295 (daily ed., Sept. 16, 1976).
Congress made clear, however, that this legislation did not alter the definition of which overcharged persons were injured within the meaning of § 4. It simply created a new procedural device parens patriae actions by States on behalf of their citizens to enforce existing rights of recovery under § 4. The House Report quoted above stated that the parens patriae provision "creates no new substantive liability"; the relevant language of the newly enacted § 4C(a) of the Clayton Act tracks that of existing § 4, showing that it was intended only as "an alternative means . . . for the vindication of existing substantive claims." H.R.Rep. No. 94-499, supra, at 9, 1976 U.S.Code Cong. & Admin.News, p. 2578. "The establishment of an alternative remedy does not increase any defendant's liability." Ibid. Representative Rodino himself acknowledged in the remarks cited above that this legislation did not create a right of recovery for consumers where one did not already exist.
We thus cannot agree with the dissenters that the legislative history of the 1976 Antitrust Improvements Act is dispositive as to the interpretation of § 4 of the Clayton Act, enacted in 1914, or the predecessor section of the Sherman Act, enacted in 1890. Post, at 756-758. The cases cited by Mr. Justice BRENNAN, post, at 765 n. 24, to support his reliance on this legislation all involved specific statutory language that was thought to clarify the meaning of an earlier statute. E. g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969) (language in 1959 amendment to § 315 of the Communications Act approved fairness doctrine adopted by FCC under the "public interest" standard of the original Act). Here, by contrast, Congress borrowed the language of § 4 in adding the parens patriae section. The views expressed by particular legislators as to the meaning of that language in § 4 "cannot serve to change the legislative intent of Congress . . . 'since the statements were (made) after passage of the (Clayton) Act.' " Regional Rail Reorganization Act Cases, 419 U.S. 102, 132, 95 S.Ct. 335, 353, 42 L.Ed.2d 320 (1974), quoting National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 639 n. 34, 87 S.Ct. 1250, 1265, 18 L.Ed.2d 357 (1967).
While we do not lightly disagree with the reading of Hanover Shoe urged by these legislators, we think the construction of § 4 adopted in that decision cannot be applied for the exclusive benefit of plaintiffs. Should Congress disagree with this result, it may, of course, amend the section to change it. But it has not done so in the recent parens patriae legislation.
15
In a separate trial pursuant to Fed.Rule Civ.Proc. 42(b), the District Court held that the defendant shoe machinery manufacturer was not permitted to assert a pass-on defense against its customer. 185 F.Supp. 826 (MD Pa.), aff'd, 281 F.2d 481 (CA3), cert. denied, 364 U.S. 901, 81 S.Ct. 234, 5 L.Ed.2d 194 (1960). The District Court indicated that pass-on defenses were barred against "consumers" who use the defendant's product to make their own but not against "middlemen" who simply resell the defendant's product. 185 F.Supp., at 830-831. Both on interlocutory appeal and after trial on the merits, the Court of Appeals affirmed on the basis of the District Court's reasoning. See 392 U.S., at 488 n. 6, 88 S.Ct., at 2228.
16
Another situation in which market forces have been superseded and the pass-on defense might be permitted is where the direct purchaser is owned or controlled by its customer. Cf. Perkins v. Standard Oil Co., 395 U.S. 642, 648, 89 S.Ct. 1871, 1874, 23 L.Ed.2d 599 (1969); In re Western Liquid Asphalt Cases, 487 F.2d, at 197, 199.
17
The sole dissenting Justice in Hanover Shoe did not reach the pass-on question. 392 U.S., at 513, 88 S.Ct., at 2241.
18
In this Part, we assume that use of pass-on will be permitted symmetrically, if at all. This assumption, of course, reduces the substantial risk of multiple liability for defendants that is posed by allowing indirect purchasers to recover for the overcharge passed on to them while at the same time allowing direct purchasers automatically to collect the entire overcharge. See supra, at 730-731. But the possibility of inconsistent judgments obtained by conflicting claimants remains nonetheless. Even this residual possibility justifies bringing potential and actual claimants together in one action if possible.
19
See n. 11, supra. Interpleader under Fed.Rule Civ.Proc. 22(1) often would be unavailable because service of process for rule interpleader, as contrasted with statutory interpleader, does not run nationwide. See 3A J. Moore, Federal Practice P 22.04(2) (1974).
20
For example, a condition precedent for invoking statutory interpleader is the posting of a bond for the amount in dispute, 28 U.S.C. § 1335(a)(2), see 3A J. Moore, supra, P 22.10, and a defendant may be unwilling to put up a bond for the huge amounts normally claimed in multiple-party treble-damages suits. For a discussion of other circumstances in which statutory interpleader may be "impractical," see McGuire, The Passing-On Defense and the Right of Remote Purchasers to Recover Treble Damages under Hanover Shoe, 33 U.Pitt.L.Rev. 177, 197-198 (1971).
21
Rule 19(a) provides in part:
"A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest."
22
See the comment of the Advisory Committee on the 1966 Amendment to Rule 19: "In some situations it may be desirable to advise a person who has not been joined of the fact that the action is pending, and in particular cases the court in its discretion may itself convey this information by directing a letter or other informal notice to the absentee." 28 U.S.C. App., p. 7760.
23
E. g., Philadelphia Housing Auth. v. American Radiator & Standard Sanitary Corp., 50 F.R.D. 13 (ED Pa.1970), aff'd sub nom. Mangano v. American Radiator & Standard Sanitary Corp., 438 F.2d 1187 (CA3 1971) (suit against manufacturers of plumbing fixtures on behalf of all homeowners in the United States). There often will be more levels of distribution or manufacture between the defendant and the ultimate consumers than the two levels (masonry and general contractors) in this case. For example, in Philadelphia Housing Auth., supra, the plaintiffs included homeowners who had bought used rather than new homes and who therefore had to show that each time their houses changed hands the sellers passed on part of the plumbing manufacturers' original overcharge. 50 F.R.D., at 19-20, 25-26. Treble-damages suits by ultimate consumers against any of the manufacturers of industrial raw materials or equipment that have been charged in recent Government price-fixing suits would involve not only several levels within a distribution chain, but also several separate chains of distribution; for example, chromite sand is used to make ingots, ingots are used to make steel, and steel is used to make consumer products. Handler & Blechman, supra, n. 7, at 640 n. 77, and see id., at 636-637 (citing Justice Department price-fixing suits against defendants far removed from consumers).
24
E. g., Donson Stores, Inc. v. American Bakeries Co., 58 F.R.D. 481 (SDNY 1973) (motion to intervene by a putative class of 20 million consumers of bread in treble-damages action against bread manufacturers). Cf. Handler & Blechman, supra, n. 7, at 653 (arguing that the effect of legislation authorizing States to bring treble-damages actions on behalf of their citizens, see n. 14, supra, will be to interject claims on behalf of large classes of consumers into treble-damages suits brought by middlemen). Thus in this case the plaintiff housing authorities, App. 20, presumably have passed on part of the alleged overcharge to their tenants and subtenants, who would have to be brought into the suit before damages could be fairly apportioned.
25
An overcharge imposed by an antitrust violator or group of violators on their customers is analytically equivalent to an excise tax imposed on the violator's product in the amount of the overcharge. The effect of such an overcharge can be calculated using the economic theorems for the incidence of an excise tax. See Schaefer, Passing-On Theory in Antitrust Treble Damage Actions: An Economic and Legal Analysis, 16 Wm. & Mary L.Rev. 883, 887, 893 (1975), and sources cited in id., at 887 n. 21.
26
Thus, in the instant case respondents have offered to prove that general and masonry contractors calculate their bids by adding a percentage markup to the cost of their materials, Brief for Respondents 20-23, rather than by attempting to equate marginal cost and marginal revenue as required by an explicit profit-maximizing strategy.
27
Mr. Justice BRENNAN in dissent argues that estimating a passee's damages requires nothing more than estimating what the passer's price would have been absent the violation, and suggests that apportioning the overcharge throughout the distribution chain is "no different from and no more complicated" than the initial task of estimating the amount of the overcharge itself. Post, at 758-759, and n. 14. But as the dissent recognizes, post, at 749 n. 3, unless the indirect purchaser is at the end of the distribution chain it can claim damages not only from the portion of the overcharge it absorbs but also from the portion it passes on, which causes a reduction in sales volume under less than perfectly inelastic demand conditions. See n. 13, supra. The difficulties of the task urged upon us by the dissenters cannot be so easily brushed aside.
In any event, as we understand the dissenters' argument, it reduces to the proposition that because antitrust cases are already complicated there is little harm in making them more so. We disagree.
28
See, e. g., West Virginia v. Chas. Pfizer & Co., 314 F.Supp. 710, 745-746 (SDNY 1970), aff'd, 440 F.2d 1079 (CA2 1971); Boshes v. General Motors Corp., 59 F.R.D., at 597.
29
We note that supporters of the offensive use of pass-on, other than litigants in particular cases, generally have not contended for a halfway rejection of Hanover Shoe that would permit offensive use of pass-on in some types of market situations but not in others. See, e. g., Tr. of Oral Arg. 57 (United States as amicus curiae ); Note, The Defense of "Passing On" in Treble Damage Suits Under the Antitrust Laws, 70 Yale L.J. 469, 476, 478 (1961); commentators cited in n. 11, supra.
30
See, e. g., In re Western Liquid Asphalt Cases, 487 F.2d, at 198; Wheeler, Antitrust Treble-Damage Actions: Do They Work?, 61 Calif.L.Rev. 1319, 1325 (1973).
31
Commentators have noted that recoveries in treble-damages actions aggregating large numbers of small claims often have failed to compensate the individuals on behalf of whom the suits have been brought. E. g., Handler, The Shift from Substantive to Procedural Innovations in Antitrust Suits the Twenty-Third Annual Antitrust Review, 71 Colum.L.Rev. 1, 9-10 (1971); Wheeler, supra, at 1339; Kirkham, Complex Civil Litigation Have Good Intentions Gone Awry?, 70 F.R.D. 199, 206-207 (1976).
The dissenting opinion of Mr. Justice BRENNAN appears to suggest that the 1976 parens patriae legislation, see n. 14, supra, provides an answer to this problem of compensating indirect purchasers for small injuries. Post, at 764, n. 23. Quite to the contrary, the Act "recognizes that rarely, if ever, will all potential claimants actually come forward to secure their share of the recovery," and that "the undistributed portion of the fund . . . will often be substantial." H.R.Rep.No.94-499, p. 16 (1975); 1976 U.S.Code Cong. & Admin.News, p. 2585. The portion of the fund recovered in a parens patriae action that is not used to compensate the actual injuries of antitrust victims is to be used as "a civil penalty . . . deposited with the State as general revenues," Clayton Act § 4E(2), 15 U.S.C. § 15e(2) (1976 ed.), enacted by the 1976 Act, or "for some public purposes benefiting, as closely as possible, the class of injured persons," such as reducing the price of the overcharged goods in future sales. H.R.Rep.No.94-499, supra, at 16, 1976 U.S.Code Cong. & Admin.News, p. 2585. That Congress chose to provide such innovative methods of distributing damages awarded in a parens patriae action under newly enacted § 4C of the Clayton Act, 15 U.S.C. § 15c (1976 ed.), does not eliminate the obstacles to compensating indirect purchasers bringing traditional suits under § 4.
1
The block was sold to various general and special contractors who had successfully bid to construct public buildings. The State was thus an indirect purchaser of the block.
2
There is, of course, a point beyond which antitrust defendants should not be held responsible for the remote consequences of their actions. See the discussion in Part III, ante, at 760-761.
3
The portion of an illegal overcharge that a direct purchaser can pass on depends upon the elasticity of demand in the relevant product market. If the market is relatively inelastic, he may pass on a relatively large portion. If demand is relatively elastic, he may not be able to raise his price and will have to absorb the increase, making it up by decreasing other costs or increasing sales volume. It is extremely unlikely that a middleman could pass on the entire cost increase. But rarely would he have to absorb the entire increase. R. Posner, Antitrust Cases, Economic Notes, and Other Materials 147-149 (1974).
4
The opinion recognizes that "there might be situations for instance, when an overcharged buyer has a pre-existing 'cost-plus' contract, thus making it easy to prove that he has not been damaged where the considerations requiring that the passing-on defense not be permitted in this case would not be present." 392 U.S., at 494, 88 S.Ct., at 2232.
5
Hanover Shoe, did not involve the consumers of the plaintiff's shoes, to whom the overcharge allegedly was passed. United's passing-on argument is referred to as "defensive" passing on. The State's position, seeking recovery of illegal overcharges allegedly passed on to it and its citizens, is referred to as "offensive" passing on.
6
Hanover alleged that United monopolized the shoe machinery industry in violation of § 2 of the Sherman Act by its practice of leasing but refusing to sell its shoemaking machinery.
7
In Darnell-Taenzer, shippers brought suit for reparations against a railroad claiming that the railroad had charged unreasonable rates. The railroad argued that the shippers had in turn passed on to their customers any excess over the reasonable rate.
8
"(T)he impact of a single change in the relevant conditions cannot be measured after the fact; indeed a businessman may be unable to state whether, had one fact been different . . ., he would have chosen a different price. . . . " 392 U.S., at 492-493, 88 S.Ct., at 2231. The Court further observed that it is equally difficult to ascertain "what effect a change in a company's price will have on its total sales"; and it is all but impossible to demonstrate that the particular plaintiff "could not or would not have raised his prices absent the overcharge or maintained the higher price had the overcharge been discontinued." Id., at 493, 88 S.Ct., at 2231. See generally Posner, supra, n. 3, at 147-149.
9
The pass-on defense in Hanover Shoe was asserted by a defendant against whom a prima facie case of liability had already been made out. The Clayton Act provides: "A final judgment . . . rendered in any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws . . . shall be prima facie evidence against such defendant . . . ." 15 U.S.C. § 16(a). The Government had secured a judgment against United in United States v. United Shoe Machinery Corp., 110 F.Supp. 295 (Mass.1953), summarily aff'd, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910 (1954).
10
Commentators almost unanimously conclude that, despite Hanover Shoe, § 4 should be construed to authorize indirect purchasers to recover upon proof that increases were passed on to them. See, e. g., Comment, Standing to Sue in Antitrust Cases: The Offensive Use of Passing-On, 123 U.Pa.L.Rev. 976 (1975); Comment, Mangano and Ultimate-Consumer Standing: The Misuse of the Hanover Doctrine, 72 Colum.L.Rev. 394 (1972); Note, The Effect of Hanover Shoe on the Offensive Use of the Passing-on Doctrine, 46 So.Cal.L.Rev. 98 (1972). But see Handler & Blechman, Antitrust and the Consumer Interest: The Fallacy of Parens Patriae and A Suggested New Approach, 85 Yale L.J. 626, 638-655 (1976). In addition, most courts have read Hanover Shoe as not preventing indirect purchasers from attempting to prove that they have been injured. See, e. g., Yoder Bros., Inc. v. California-Florida Plant Corp., 537 F.2d 1347 (CA5 1976); In re Western Liquid Asphalt Cases, 487 F.2d 191 (CA9 1973), cert. denied sub nom. Standard Oil Co. of Cal. v. Alaska, 415 U.S. 919, 94 S.Ct. 1419, 39 L.Ed.2d 474 (1974); Illinois v. Bristol-Myers Co., 152 U.S.App.D.C. 367, 470 F.2d 1276 (1972); West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079 (CA2), cert. denied sub nom. Cotler Drugs, Inc. v. Chas. Pfizer & Co., 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971); In re Master Key Antitrust Litigation, 1973-2 Trade Cas. P 74,680 (Conn.).
11
A further indication of Congress' desire to create a remedy for all persons, including consumers, even though their individual injuries might be comparatively slight, was the elimination of the jurisdictional-amount requirement for antitrust actions. See 21 Cong.Rec. 2612, 3148-3149 (1890) (remarks of Sens. Sherman and Edmunds).
12
The fact that damages are trebled both aids deterrence and provides the incentive of compensation, since it encourages suits for relatively minor injuries.
13
Congress rejected earlier Court of Appeals and District Court decisions erecting standing barriers to suits by indirect purchasers and chose instead to pattern the Act "after such innovative decisions as In re Western Liquid Asphalt Cases, 487 F.2d 191 (9th Cir. 1973); In re Master Key Litigation, 1973 Trade Cases P 74,680 and 1975 Trade Cases P 60,37 7 (DC Conn.); State of Illinois v. Ampress Brick Co., 1975 Trade Cases P 60,295 (DC Ill.) (this case below); Carnivale Bag Co. v. Slide Rite Mfg., 1975 Trade Cases P 60,370 (S.D.N.Y.); In re Antibiotics Antitrust Actions, 333 F.Supp. 278 (S.D.N.Y.1971); and West Virginia v. Charles Pfizer & Co., 440 F.2d 1079 (2d Cir. 1971)." Congress accepted these decisions as correctly stating the law. S.Rep.No. 94-803, pp. 42-43 (1976).
14
In Hanover Shoe, the measure of damages was the difference between the amount Hanover paid for the lease and the amount it would have paid had United agreed to sell the machinery. It has been suggested that the burden of demonstrating a pass-on may be no more difficult or speculative than the plaintiff's initial task of proving an overcharge in the first instance. See Pollock, Automatic Treble Damages and the Passing-on Defense: The Hanover Shoe Decision, 13 Antitrust Bull. 1183, 1210 (1968).
15
One commentator has suggested that, in deciding whether to permit recovery by indirect purchasers in a particular case, courts should consider the number of intervening hands the product has passed through and the extent of its change in the process. P. Areeda, Antitrust Analysis: Problems, Text, Cases 75 (2d Ed. 1974).
16
This holding is consistent with the Court's continuing concern for the effectiveness of the treble-damages action, which has been sustained even when the plaintiff was "no less morally reprehensible than the defendant" with whom he had conspired. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 139, 88 S.Ct. 1981, 1984, 20 L.Ed.2d 982 (1968).
17
See, e. g., Loeb v. Eastman Kodak Co., 183 F. 704 (CA3 1910).
18
Earlier this Term, Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., disallowed a treble-damages recovery, stating that in order to recover antitrust 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 (the) defendants' acts unlawful." 429 U.S., at 489, 97 S.Ct., at 697. At least one Court of Appeals has rephrased the target-area test in terms of whether the injury to the plaintiff is a reasonably foreseeable consequence of the defendant's illegal conduct. Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073 (CA9 1970), cert. denied, 402 U.S. 923, 91 S.Ct. 1377, 28 L.Ed.2d 662 (1971).
19
If direct and indirect purchasers bring suit in the same court, the cases may be consolidated and damages allocated in accordance with Fed.Rule Civ.Proc. 42(a). See West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079 (CA2 1971).
20
For a discussion of this process, see Note, The Judicial Panel and the Conduct of Multidistrict Litigation, 87 Harv.L.Rev. 1001 (1974); Comment, The Experience of Transferee Courts Under the Multidistrict Litigation Act, 39 U.Chi.L.Rev. 588 (1972).
21
Petitioners suggest that interpleader may be an impractical alternative for some defendants, since it requires a defendant to complicate the suit by bringing in ultimate consumers and to post bond for the amount in controversy. See 28 U.S.C. § 1335(a)(2). Although § 1335 clearly places a burden upon defendants who elect to use it in order to avoid potential multiple liability, that burden is not unique to antitrust cases, and Congress has clearly indicated that it considers the burden justified. See S.Rep. No. 94-803, p. 44 (1976).
22
The problem of potential multiple recoveries is not present in this case. All suits against petitioners were filed in the Northern District of Illinois. Petitioners never sought consolidation under Fed.Rule Civ.Proc. 42(a) and stipulated in settlements with direct purchasers that the settlement would not affect the rights of indirect purchasers.
23
The opinion for the Court "recognize(s) that direct purchasers sometimes may refrain from bringing a treble-damages suit for fear of disrupting relations with their suppliers," but concludes that "on balance, and until there are clear directions from Congress to the contrary, we conclude that the legislative purpose in creating a group of 'private attorneys general' to enforce the antitrust laws . . . is better served by holding direct purchasers to be injured to the full extent of the overcharge paid by them than by attempting to apportion the overcharge among all that may have absorbed a part of it." Ante, at 746. But the intent of Congress in enacting the parens patriae provision of the 1976 Act was clearly to provide a mechanism to permit recovery by consumers, and this purpose is not furthered by a rule that will keep most consumers out of court.
The Court's opinion further observes that "(m)any of the indirect purchasers barred from asserting pass-on claims . . . have such a small stake in the lawsuit that even if they were to recover as part of a class, only a small fraction would be likely to come forward to collect their damages." Ante, at 747. Yet it was precisely because of judicially perceived weaknesses in the class action as a device for consumer recovery for antitrust violations that Congress enacted the parens patriae provision of the 1976 Act.
24
Abundant authority sanctions deference to congressional indications in subsequent legislation regarding the congressional meaning in earlier Acts worded consistently with that meaning. NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, 94 S.Ct. 1757, 1762, 40 L.Ed.2d 134 (1974); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969); FHA v. The Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 145, 3 L.Ed.2d 132 (1958); United States v. Stafoff, 260 U.S. 477, 480, 43 S.Ct. 197, 199, 67 L.Ed. 358 (1923); New York & Norfolk R. Co. v. Peninsula Exchange, 240 U.S. 34, 39, 36 S.Ct. 230, 232, 60 L.Ed. 511 (1916). Although it is true, as the Court's opinion states, ante, at 734 n. 14, that the post-enactment statements of "particular legislators" who participated in the enactment of a statute cannot change its meaning, see Regional Rail Reorganization Act Cases, 419 U.S. 102, 132, 95 S.Ct. 335, 352, 42 L.Ed.2d 320 (1974), quoting National Woodwork Manufacturers Ass'n v. NLRB, 386 U.S. 612, 639 n. 34, 87 S.Ct. 1250, 1265, 18 L.Ed.2d 357 (1967), in this case, the House and Senate Reports accompanying the amendments to § 4 of the Clayton Act clearly reveal the 94th Congress' interpretation of that section as permitting the kind of consumer action which the Court now prohibits. Moreover, it is no answer to this to say that the new parens patriae provision will not in all cases directly compensate indirect purchasers, ante, at 747 n. 31, for it is clear that despite the difficulty of distributing benefits to such injured persons the new Act authorizes recovery by the State on their behalf.
| 78
|
431 U.S. 651
97 S.Ct. 2034
52 L.Ed.2d 651
Donald ABNEY, Larry Starks and Alonzo Robinson, Petitioners,v.UNITED STATES.
No. 75-6521.
Argued Jan. 17, 1977.
Decided June 9, 1977.
Syllabus
Petitioners and others were charged in a single-count indictment with conspiracy and an attempt to obstruct interstate commerce by means of extortion, in violation of the Hobbs Act. Petitioners challenged the indictment as duplicitous, contending that its single count improperly charged both a conspiracy and an attempt to violate the Hobbs Act. The District Court refused to dismiss the indictment but required the prosecution to prove all the elements of both offenses charged in the indictment, and instructed the jury to that effect. The jury returned a guilty verdict against each petitioner. The Court of Appeals reversed and ordered a new trial on certain evidentiary grounds, at the same time directing the Government to elect between the conspiracy and attempt charges on remand. After the Government elected to proceed on the conspiracy charge, petitioners moved to dismiss the indictment on grounds that the retrial would expose them to double jeopardy and that the indictment, as modified by the election, failed to charge an offense. The District Court denied the motion, and petitioners immediately appealed. The Court of Appeals affirmed, but did not address the Government's argument that the court had no jurisdiction to hear the appeal since the denial of petitioners' motion to dismiss the indictment was not a "final decision" within the meaning of 28 U.S.C. § 1291, which grants courts of appeals jurisdiction to review "all final decisions" of the district courts, both civil and criminal. Held:
1. The District Court's pretrial order denying petitioners' motion to dismiss the indictment on double jeopardy grounds was a "final decision" within the meaning of § 1291, and thus was immediately appealable. Pp. 656-662.
(a) Although lacking the finality traditionally considered indispensable to appellate review, such an order falls within the "collateral order" exception to the final-judgment rule announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, since it constitutes a complete, formal, and, in the trial court, final rejection of an accused's double jeopardy claim, the very nature of which is such that it is collateral to, and separable from, the principal issue of whether or not the accused is guilty of the offense charged. Pp. 657-660.
(b) Moreover, the rights conferred on an accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence, since that Clause not only protects an individual against being subjected to double punishments but also is a guarantee against being twice put to trial for the same offense. Pp. 660-662.
2. The court of Appeals had no jurisdiction under § 1291 to pass on the merits of petitioners' challenge to the sufficiency of the indictment, since the District Court's rejection of such challenge does not come within the Cohen exception. That rejection is not "collateral" in any sense of that term, but rather goes to the very heart of the issues to be resolved at the upcoming trial. Moreover, the issue resolved adversely to petitioners is such that it may be reviewed effectively, and, if necessary, corrected if and when a final judgment results. Pp. 662-663.
3. The Double Jeopardy Clause does not preclude petitioners' retrial on the conspiracy charge. It cannot be assumed that the jury disregarded the District Court's instructions at the initial trial that it could not return a guilty verdict unless the Government proved beyond a reasonable doubt all of the elements of both offenses charged in the indictment, and therefore it would appear that the jury did not acquit petitioners of the conspiracy charge, while convicting them on the attempt charge, as petitioners urge was a possibility in view of the general verdict. Pp. 663-665.
3 Cir., 530 F.2d 963, affirmed in part, reversed in part, and remanded.
Ralph David Samuel, Philadelphia, Pa., for petitioners.
Richard L. Thornburgh, Washington, D.C., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to determine whether a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds is a final decision within the meaning of 28 U.S.C. § 1291,1 and thus immediately appealable. If it is a final decision, we must also decide: (a) whether the Double Jeopardy Clause bars the instant prosecution; (b) whether the courts of appeals have jurisdiction to consider non-double-jeopardy claims presented pendent to such appeals; and, if so, (c) whether the Court of Appeals erred in refusing to dismiss the indictment on the alternative grounds asserted by the petitioners.
2
(1)
3
In March 1974, a single-count indictment was returned in the United States District Court for the Eastern District of Pennsylvania charging petitioners, Donald Abney, Larry Starks, and Alonzo Robinson, and two others, with conspiracy and an attempt to obstruct interstate commerce by means of extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951.2 The Government's case was based upon the testimony of one Ulysses Rice, the alleged victim of the conspiracy. Rice was the owner and operator of a Philadelphia, Pa., tavern selling liquor that was distilled and bottled outside of the State. According to Rice, petitioners had engaged in a pattern of extortionate practices against him. Initially, such activities had been thinly veiled under the pretense of solicitations for subscriptions to Black Muslim newspapers, sales of various food items, and appeals for contributions for a Black Muslim holiday. Eventually, however, demands for larger sums of money, including $200 in weekly "taxes" accompanied by threats, were made upon Rice at his place of business. These threats led Rice to contact the Federal Bureau of Investigation which provided him with "marked money" and a body tape recorder in anticipation of future demands by the petitioners. When such a demand was made, Rice paid it with the marked currency and recorded the transaction on the body recorder. Petitioners were arrested despite their claims that all of the contributions by Rice had been bona fide gifts for Muslim religious causes. The tape recording of the last transaction was later introduced at petitioners' trial and, not surprisingly, it proved useful in refuting this claim of innocent purpose.
4
Both prior to, and during, the ensuing trial, the petitioners challenged the indictment on grounds of duplicity of offenses, claiming that its single count improperly charged both a conspiracy and an attempt to violate the Hobbs Act. Although the District Court apparently agreed with this contention, it refused either to dismiss the indictment or require the prosecutor to elect between theories. Rather, it required the Government to establish both offenses, as the prosecutor represented that he would do, and instructed the jury to that effect:
5
"I would also point out that in the indictment it is charged that the defendants were guilty of both conspiracy and attempt and the essential elements of both of these offenses must be proved before any defendant could be found guilty." Tr. 10-60 (emphasis added).
6
The jury returned a guilty verdict against each petitioner, but acquitted two others charged in the indictment.
7
On appeal, the United States Court of Appeals for the Third Circuit reversed petitioners' convictions and ordered a new trial on the ground that the key tape recording had been admitted into evidence without proper authentication. United States v. Starks, 515 F.2d 112 (1975). The Court of Appeals also agreed with the petitioners' claim that the indictment was duplicitous. Id., at 115-118. However, since the admission of the unauthenticated tape recording necessitated a new trial in any event, the court found it unnecessary to pass on the Government's argument that the indictment's duplicitous nature had been corrected by the trial court's instructions to the jury and was thus harmless. Id., at 118. Nonetheless, it directed the Government to elect between the conspiracy and attempt charges on remand in order to avoid any similar problems at the next trial. Id., at 118, 125.
8
On remand, the Government elected to proceed on the conspiracy charge. Petitioners then moved to dismiss the indictment, arguing: (a) that retrial would expose them to double jeopardy; and (b) that the indictment, as modified by the election, failed to charge an offense. The District Court denied the motion, and the petitioners immediately appealed to the Court of Appeals.
9
Before addressing the merits of petitioners' claims, the Government challenged the Court of Appeals' jurisdiction to hear the interlocutory appeal and asked that its prior decision in United States v. DiSilvio, 520 F.2d 247 (1975), be overruled; there the court had held that the denial of a pretrial motion to dismiss an indictment on double jeopardy grounds constituted a final decision within the meaning of 28 U.S.C. § 1291, and, as such, was immediately appealable. 520 F.2d, at 248 n. 2a. The Court of Appeals failed to address the Government's argument. Rather, after ordering the case to be submitted on the briefs without oral argument, it affirmed the District Court by a judgment order which explicitly rejected both of the petitioners' attacks on the indictment. We granted certiorari to review the decision of the Court of Appeals.
10
(2)
11
(1, 2) We approach the threshold appealability question with two principles in mind. First, it is well settled that there is no constitutional right to an appeal. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 87 (1894). Indeed, for a century after this Court was established, no appeal as of right existed in criminal cases, and, as a result, appellate review of criminal convictions was rarely allowed.3 As the Court described this period in Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563 (1903):
12
"(T)rials under the Federal practice for even the gravest offences ended in the trial court, except in cases where two judges were present and certified a question of law to this court." Id., at 508, 23 S.Ct., at 392.
13
The right of appeal, as we presently know it in criminal cases, is purely a creature of statute; in order to exercise that statutory right of appeal one must come within the terms of the applicable statute in this case, 28 U.S.C. § 1291.
14
(3-5) Second, since appeals of right have been authorized by Congress in criminal cases, as in civil cases, there has been a firm congressional policy against interlocutory or "piecemeal" appeals and courts have consistently given effect to that policy. Finality of judgment has been required as a predicate for federal appellate jurisdiction.
15
"The general principle of federal appellate jurisdiction, derived from the common law and enacted by the First Congress, requires that review of nisi prius proceedings await their termination by final judgment." DiBella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (c7).
16
Accord, Cobbledick v. United States, 309 U.S. 323, 324-326, 60 S.Ct. 540, 540-541, 84 L.Ed. 783 (1940). This principle is currently embodied in 28 U.S.C. § 1291 which grants the federal courts of appeals jurisdiction to review "all final decisions of the district courts," both civil and criminal. Adherence to this rule of finality has been particularly stringent in criminal prosecutions because "the delays and disruptions attendant upon intermediate appeal," which the rule is designed to avoid, "are especially inimical to the effective and fair administration of the criminal law." DiBella, supra, at 126, 82 S.Ct., at 658. Accord, Cobbledick, supra, at 324-326, 60 S.Ct., at 540-541.
17
The pretrial denial of a motion to dismiss an indictment on double jeopardy grounds is obviously not "final" in the sense that it terminates the criminal proceedings in the district court. Nonetheless, a number of the Courts of Appeals have held that § 1291 does not bar an immediate appeal from such a pretrial order. United States v. Barket, 530 F.2d 181 (CA8 1975), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976); United States v. Beckerman, 516 F.2d 905 (CA2 1975); United States v. Lansdown, 460 F.2d 164 (CA4 1972). Contra, United States v. Young, 544 F.2d 415 (CA9 1976); United States v. Bailey, 512 F.2d 833 (CA5 1975). In reaching this conclusion, those courts have taken the position that such pretrial orders fall within the so-called "collateral order" exception to the final-judgment rule first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and are thus "final decisions" within the meaning of § 1291.
18
Cohen was a shareholder's derivative civil action in which federal jurisdiction rested on the diverse citizenship of the parties. Prior to trial, a question arose over whether a state statute requiring the plaintiff shareholder to post security for the costs of litigation applied in the federal court. After the District Court denied its motion to require such security, the corporate defendant sought immediate appellate review of the ruling in the Court of Appeals. That court reversed and ordered that security be posted. Thereafter, this Court held that the Court of Appeals had jurisdiction under § 1291 to entertain an appeal from the District Court's pretrial order.
19
In holding that the pretrial order was a "final decision" for purposes of § 1291, the Court recognized that § 1291 did not uniformly limit appellate jurisdiction to "those final judgments which terminate an action." 337 U.S., at 545, 69 S.Ct., at 1225; Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974). Rather as Mr. Justice Jackson, the author of Cohen, later pointed out:
20
"(I)t is a final decision that Congress has made reviewable. . . . While a final judgment always is a final decision, there are instances in which a final decision is not a final judgment." Stack v. Boyle, 342 U.S. 1, 12, 72 S.Ct. 1, 7, 96 L.Ed. 3 (1951) (separate opinion).
21
That term, the Court held, was to be given a "practical rather than a technical construction." Cohen, supra, at 546, 69 S.Ct., at 1226. In giving it such a construction, the Court identified several factors which, in its view, rendered the District Court's order a "final decision" within the statute's meaning. First, the District Court's order had fully disposed of the question of the state security statute's applicability in federal court; in no sense, did it leave the matter "open, unfinished or inconclusive." Ibid. Second, the decision was not simply a "step toward final disposition of the merits of the case (which would) be merged in final judgment"; rather, it resolved an issue completely collateral to the cause of action asserted. Ibid. Finally, the decision had involved an important right which would be "lost, probably irreparably," if review had to await final judgment; hence, to be effective, appellate review in that special, limited setting had to be immediate. Ibid. The Court concluded:
22
"This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id., 337 U.S. at 546, 69 S.Ct., at 1225.
23
(6) Although it is true that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds lacks the finality traditionally considered indispensable to appellate review, we conclude that such orders fall within the "small class of cases" that Cohen has placed beyond the confines of the final-judgment rule.4 In the first place there can be no doubt that such orders constitute a complete, formal, and, in the trial court, final rejection of a criminal defendant's double jeopardy claim. There are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred by the Fifth Amendment's guarantee. Hence, Cohen 's threshold requirement of a fully consummated decision is satisfied.
24
Moreover, the very nature of a double jeopardy claim is such that it is collateral to, and separable from the principal issue at the accused's impending criminal trial, i. e., whether or not the accused is guilty of the offense charged. In arguing that the Double Jeopardy Clause of the Fifth Amendment bars his prosecution, the defendant makes no challenge whatsoever to the merits of the charge against him. Nor does he seek suppression of evidence which the Government plans to use in obtaining a conviction. See DiBella, supra; Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929). Rather, he is contesting the very authority of the Government to hale him into court to face trial on the charge against him. Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974); Robinson v. Neil, 409 U.S. 505, 509, 93 S.Ct. 876, 878, 35 L.Ed.2d 29 (1973). The elements of that claim are completely independent of his guilt or innocence. Indeed, we explicitly recognized that fact in Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971), where we held that a State Supreme Court's rejection of an accused's pretrial plea of former jeopardy constituted a "final" order for purposes of our appellate jurisdiction under 28 U.S.C. § 1257.5
25
"Since the state courts have finally rejected a claim that the Constitution forbids a second trial of the petitioner, a claim separate and apart from the question whether the petitioner may constitutionally be convicted of the crimes with which he is charged, our jurisdiction is properly invoked under 28 U.S.C. § 1257." 404 U.S., at 56, 92 S.Ct., at 184.
26
Accord, Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); Colombo v. New York, 405 U.S. 9, 92 S.Ct. 756, 30 L.Ed.2d 762 (1972). Thus, the matters embraced in the trial court's pretrial order here are truly collateral to the criminal prosecution itself in the sense that they will not "affect, or . . . be affected by, decision of the merits of this case." Cohen, 337 U.S., at 546, 69 S.Ct., at 1225.
27
(7-9) Finally, the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. To be sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on an appeal following final judgment, as the Government suggests. However, this Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.6
28
" 'The Constitution of the United States, in the Fifth Amendment, declares, " nor shall any person be subject (for the same offense) to be twice put in jeopardy of life or limb." The prohibition is not against being twice punished, but against being twice put in jeopardy . . . .' . . . The 'twice put in jeopardy' language of the Constitution thus relates to a potential, i. e., the risk that an accused for a second time will be convicted of the 'same offense' for which he was initially tried." Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300 (1970).
29
See also United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971); Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896). Because of this focus on the "risk" of conviction, the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction. Mr. Justice Black aptly described the purpose of the Clause:
30
"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green, supra, 355 U.S., at 187-188, 78 S.Ct. 221, 223.
31
Accord, Breed v. Jones, 421 U.S. 519, 529-530, 95 S.Ct. 1779, 1785-1786, 44 L.Ed.2d 346 (1975); Serfass v. United States, 420 U.S. 377, 387-388, 95 S.Ct. 1055, 1061-1062, 43 L.Ed.2d 265 (1975); Jorn, supra, 400 U.S., at 479, 91 S.Ct. at 554. Obviously, these aspects of the guarantee's protections would be lost if the accused were forced to "run the gauntlet" a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit.7 Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.
32
We therefore hold that pretrial orders rejecting claims of former jeopardy, such as that presently before us, constitute "final decisions" and thus satisfy the jurisdictional prerequisites of § 1291.8
33
(3)
34
(10) In determining that the courts of appeals may exercise jurisdiction over an appeal from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds, we, of course, do not hold that other claims contained in the motion to dismiss are immediately appealable as well. United States v. Barket, 530 F.2d 181 (CA8 1975), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976). Our conclusion that a defendant may seek immediate appellate review of a district court's rejection of his double jeopardy claim is based on the special considerations permeating claims of that nature which justify a departure from the normal rule of finality. Quite obviously, such considerations do not extend beyond the claim of former jeopardy and encompass other claims presented to, and rejected by, the district court in passing on the accused's motion to dismiss. Rather, such claims are appealable if, and only if, they too fall within Cohen's collateral-order exception to the final-judgment rule. Any other rule would encourage criminal defendants to seek review of, or assert, frivolous double jeopardy claims in order to bring more serious, but otherwise nonappealable questions to the attention of the courts of appeals prior to conviction and sentence.
35
(11) Here, we think it clear that the District Court's rejection of petitioners' challenge to the sufficiency of the indictment does not come within the Cohen exception. First, an order denying a motion to dismiss an indictment for failure to state an offense is plainly not "collateral" in any sense of that term; rather it goes to the very heart of the issues to be resolved at the upcoming trial. Secondly, the issue resolved adversely to petitioners is such that it may be reviewed effectively, and, if necessary, corrected if and when a final judgment results. We therefore conclude that the Court of Appeals had no jurisdiction under § 1291 to pass on the merits of petitioners' challenge to the sufficiency of the indictment at this juncture in the proceedings.
36
(4)
37
(12) We turn finally to the merits of petitioners' claim that their retrial, following the prosecutor's election to proceed on the single conspiracy charge, is barred by the Double Jeopardy Clause. Their argument focuses on both the duplicitous indictment under which they were charged and the general verdict of guilty returned by the jury at their first trial. They maintain that because the indictment's single count charged them with both a conspiracy and an attempt to violate the Hobbs Act, it is impossible to determine the basis of the general verdict of guilt returned against them. Hence, they suggest that the jury might have convicted them on the attempt charge, but acquitted them of the charged conspiracy. This possibility, they conclude, prohibits their retrial on the conspiracy charge.
38
Whatever the merits of such an argument in another setting, we find no factual predicate for it here.9 As we noted in our description of the petitioners' initial trial, the prosecutor, rather than electing between the attempt and conspiracy charges, represented to the court that he would establish both offenses. The court held him to his word and instructed the jury that it would have to find that the Government had established all of the elements of both crimes before it could return a verdict of guilty against the petitioners.10 Indeed, it emphasized this fact to the jury immediately before it retired. Supra, at 654. We cannot assume that the jury disregarded these clear and unambiguous instructions and returned a guilty verdict without first finding that the Government had proved both crimes charged in the indictment beyond a reasonable doubt. E. g., Shotwell Mfg. Co. v. United States, 371 U.S. 341, 367, 83 S.Ct. 448, 463, 9 L.Ed.2d 357 (1963). We are therefore satisfied that the jury did not acquit petitioners of the conspiracy charge; consequently, the Double Jeopardy Clause does not preclude their retrial for that crime. E. g., North Carolina v. Pearce, 395 U.S. 711, 719-720, 89 S.Ct. 2072, 2077-2078, 23 L.Ed.2d 656 (1969); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964).
39
Accordingly, the judgment of the Court of Appeals is affirmed in part, reversed in part, and remanded.
40
It is so ordered.
41
Mr. Justice WHITE concurs in the judgment.
1
Section 1291 provides as follows:
"The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court."
2
Section 1951 provides in pertinent part:
"Whoever . . . obstructs, delays, or affects commerce . . . by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both."
3
Appeals as of right in criminal cases were first permitted in 1889 when Congress enacted a statute allowing such appeals "in all cases of conviction of crime the punishment of which provided by law is death." Act of Feb. 6, 1889, 25 Stat. 656. A general right of appeal in criminal cases was not created until 1911. Act of Mar. 3, 1911, 36 Stat. 1133.
4
Of course, Cohen's collateral-order exception is equally applicable in both civil and criminal proceedings. While Cohen itself was a civil case, the Court's decision was based on its construction of 28 U.S.C. § 1291. As previously noted, that provision gives the courts of appeals jurisdiction to review "final decisions" of the district courts in both civil and criminal cases. See Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951).
5
Section 1257 provides in pertinent part:
"Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court . . . ."
6
See also Ex parte Lange, 18 Wall. 163, 169, 21 L.Ed. 872 (1874):
"The common law not only prohibited a second punishment for the same offence, but it went further and (forbade ) a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted." (Emphasis added.)
7
A cogent analogy can be drawn to the Cohen decision. There, the corporate defendant claimed that the state security statute, if applicable, conferred on it a right not to face trial at all unless the dissatisfied shareholder first posted security for the costs of the litigation. By permitting an immediate appeal under those circumstances, this Court made sure that the benefits of the statute were not "canceled out."
8
Admittedly, our holding may encourage some defendants to engage in dilatory appeals as the Solicitor General fears. However, we believe that such problems of delay can be obviated by rules or policies giving such appeals expedited treatment. It is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims of former jeopardy.
9
In view of our determination that no factual predicate exists for petitioners' claim that the jury rendered an ambiguous verdict at their original trial, we find it unnecessary to reach the question of whether, assuming such ambiguity, their retrial would have been nonetheless permissible. See United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964).
10
In addition to the portion of the charge set out supra, at 654, the trial court gave the following instructions to the jury:
"(T)he defendants are charged not with the so-called substantive offense itself but rather with a conspiracy and attempt to obstruct, delay and affect interstate commerce by extortion. If the jury should find beyond a reasonable doubt that there was a conspiracy and an attempt to extort money from Mr. Rice, the natural and probable consequences of which conspiracy and attempt, if successfully carried out, would be to obstruct, delay and adversely affect interstate commerce in any way or degree, the offense charged in the indictment of conspiracy and attempt would be complete, and the jury could properly convict all defendants found beyond a reasonable doubt to be members of the conspiracy and attempt." Tr. 10-25.
"(I)t becomes necessary for me to define both 'conspiracy' and 'attempt,' since the defendants are charged not with the substantive offense itself of obstructing, delaying or adversely affecting interstate commerce by extortion but rather a conspiracy and attempt so to do.
"Therefore, I shall define to you all of the requisites of both a conspiracy and an attempt, because all of these requisites must be found before the jury could find any defendant guilty." Id., at 10-25 10-26.
"In this case the defendants are charged with a conspiracy and attempt, both as integral and essential parts of the single charge." Id., at 10-35.
"(T)his charge being a single conspiracy and attempt to obstruct, delay and adversely or harmfully affect interstate commerce by extortion does not require proof that the conspiracy was successful, or that its unlawful objectives were obtained. The offense charged may be proved even though the conspiracy and attempt failed because the extortion was not successfully carried out." Id., at 10-39.
| 01
|
431 U.S. 666
97 S.Ct. 2054
52 L.Ed.2d 665
STENCEL AERO ENGINEERING CORPORATION, Petitioner,v.UNITED STATES.
No. 76-321.
Argued March 22, 1977.
Decided June 9, 1977.
Rehearing Denied Oct. 3, 1977.
See 434 U.S. 882, 98 S.Ct. 250.
Syllabus
A National Guard officer was permanently injured when the ejection system of his fighter aircraft malfunctioned during a midair emergency. Although he was awarded a lifetime pension under the Veterans' Benefits Act for the injury, he brought a damages suit against, inter alia, the United States and petitioner, which had manufactured the ejection system pursuant to Government specifications and with components furnished by the Government. The serviceman claimed that the ejection system had malfunctioned as a result of the defendants' individual and joint negligence. Petitioner cross-claimed against the United States, alleging that any malfunction in the system was due to faulty Government specifications and components. The District Court granted the Government's motions for summary judgment against the officer and for dismissal of petitioner's cross-claim, on the ground that Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (wherein it was held that an on-duty serviceman injured because of Government officials' negligence may not recover against the United States under the Federal Tort Claims Act), barred both the officer's claim and petitioner's claim. Held: Petitioner's third-party indemnity claim cannot be maintained. Feres v. United States, supra. The right of a third party to recover in an indemnity action against the United States recognized in United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523, is limited by the rationale of Feres where the injured party is a serviceman. Pp. 669-674.
(a) The relationship between the Government and its suppliers of ordnance is as "distinctively federal in character" as the relationship between the Government and members of its Armed Forces, and hence, if as in Feres it makes no sense to permit the fortuity of the situs of the alleged negligence to affect the Government's liability to a serviceman for service-connected injuries, it makes equally little sense to permit that situs to affect such liability to a Government contractor for the identical injury. P. 672.
(b) The Veterans' Benefits Act provides an upper limit of liability for the Government as to service-connected injuries, and to permit petitioner's claim would circumvent such limitation. Pp. 672-673.
(c) Where the case concerns an injury to a serviceman while on duty, the adverse effect upon military discipline is identical whether the action is brought by the serviceman directly or by a third party, since in either case the issue would be the degree of the Government agents' fault, if any, and the effect upon the serviceman's safety, and the trial would involve second-guessing military orders. P. 673.
8th Cir., 536 F.2d 765, affirmed.
Thomas J. Whalen, New York City, for petitioner.
Thomas S. Martin, Washington, D.C., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case to decide whether the United States is liable under the Federal Tort Claims Act, 28 U.S.C. § 2674, to indemnify a third party for damages paid by it to a member of the Armed Forces injured in the course of military service.
2
(1)
3
On June 9, 1973, Captain John Donham was permanently injured when the egress life-support system of his F-100 fighter aircraft malfunctioned during a midair emergency.1 Petitioner, Stencel Aero Engineering Corp., manufactured the ejection system pursuant to the specifications of, and by use of certain components provided by, the United States.2 Pursuant to the Veterans' Benefits Act, 38 U.S.C. § 321 et seq., made applicable to National Guardsmen by 32 U.S.C. § 318, Captain Donham was awarded a lifetime pension of approximately $1,500 per month. He nonetheless brought suit for the injury in the Eastern District of Missouri claiming damages of $2,500,000. Named as defendants, inter alia, were the United States and Stencel. Donham alleged that the emergency eject system malfunctioned as a result of "the negligence and carelessness of the defendants individually and jointly."
4
Stencel then cross-claimed against the United States for indemnity, charging that any malfunction in the egress life-support system used by Donham was due to faulty specifications, requirements, and components provided by the United States or other persons under contract with the United States. The cross-claim further charged that the malfunctioning system had been in the exclusive custody and control of the United States since the time of its manufacture. Stencel therefore claimed that, insofar as it was negligent at all, its negligence was passive, while the negligence of the United States was active. Accordingly it prayed for indemnity as to any sums it would be required to pay to Captain Donham.3
5
The United States moved for summary judgment against Donham, contending that he could not recover under the Tort Claims Act against the Government for injuries sustained incident to military service. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The United States further moved for dismissal of Stencel's cross-claim, asserting that Feres also bars an indemnity action by a third party for monies paid to military personnel who could not recover directly from the United States.
6
The District Court granted the Government's motions, holding that Feres protected the United States both from the claim of the serviceman and that of the third party.4 Both claims were therefore dismissed for lack of subject-matter jurisdiction. Stencel appealed this ruling to the Court of Appeals for the Eighth Circuit5 and that court affirmed. 536 F.2d 765. We granted certiorari.6 429 U.S. 958, 97 S.Ct. 380, 50 L.Ed.2d 325.
7
(2)
8
In Feres v. United States, supra, the Court held that an on-duty serviceman who is injured due to the negligence of Government officials may not recover against the United States under the Federal Tort Claims Act. During the same Term, in a case involving injuries to private parties, the Court also held that the Act permits impleading the Government as a third-party defendant, under a theory of indemnity or contribution, if the original defendant claims that the United States was wholly or partially responsible for the plaintiff's injury. United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed 523 (1951). In this case we must resolve the tension between Feres and Yellow Cab when a member of the Armed Services brings a tort action against a private defendant and the latter seeks indemnity from the United States under the Tort Claims Act, claiming that Government officials were primarily responsible for the injuries.
9
Petitioner argues that "(t)he Federal Tort Claims Act waives the Government's immunity from suit in sweeping language." United States v. Yellow Cab Co., supra, at 547, 71 S.Ct. at 402. Petitioner therefore contends that, unless its claim falls within one of the express exceptions to the Act, the Court should give effect to the congressional policy underlying the Act, which is to hold the United States liable under state-law principles to the same extent as a similarly situated private individual. However, the principles of Yellow Cab here come into conflict with the equally well established doctrine of Feres v. United States. It is necessary, therefore, to examine the rationale of Feres to determine to what extent, if any, allowance of petitioner's claim would circumvent the purposes of the Act as there construed by the Court.
10
Feres was an action by the executrix of a serviceman who had been killed when the barracks in which he was sleeping caught fire. The plaintiff claimed that the United States had been negligent in quartering the decedent in barracks it knew to be unsafe due to a defective heating plant.7 While recognizing the broad congressional purpose in passing the Act, the Court noted that the relationship between a sovereign and the members of its Armed Forces is unlike any relationship between private individuals. 340 U.S., at 141-142, 71 S.Ct. at 156-157. There is thus at least a surface anomaly in applying the mandate of the Act that "(t)he United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances . . . ." 28 U.S.C. § 2674. Noting that the effect of the Act was "to waive immunity from recognized causes of action and . . . not to visit the Government with novel and unprecedented liabilities," 340 U.S., at 142, 71 S.Ct., at 157, the Court concluded:
11
"(T)he Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law. We do not think that Congress, in drafting this Act, created a new cause of action dependent on local law for service-connected injuries or death due to negligence. We cannot impute to Congress such a radical departure from established law in the absence of express congressional command." Id., at 146, 71 S.Ct., at 159.
12
In reaching this conclusion, the Court considered two factors: First, the relationship between the Government and members of its Armed Forces is " 'distinctively federal in character,' " id., at 143, 71 S.Ct., at 158, citing United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947); it would make little sense to have the Government's liability to members of the Armed Services dependent on the fortuity of where the soldier happened to be stationed at the time of the injury. Second, the Veterans' Benefits Act establishes, as a substitute for tort liability, a statutory "no fault" compensation scheme which provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government. A third factor was explicated in United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954), namely, "(t)he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty . . . ." We must therefore consider the impact of these factors where, as here, the suit against the Government is not brought by the serviceman himself, but by a third party seeking indemnity for any damages it may be required to pay the serviceman.
13
(1) Clearly, the first factor considered in Feres operates with equal force in this case. The relationship between the Government and its suppliers of ordnance is certainly no less "distinctively federal in character" than the relationship between the Government and its soldiers. The Armed Services perform a unique, nationwide function in protecting the security of the United States. To that end military authorities frequently move large numbers of men, and large quantities of equipment, from one end of the continent to the other, and beyond. Significant risk of accidents and injuries attend such a vast undertaking. If, as the Court held in Feres, it makes no sense to permit the fortuity of the situs of the alleged negligence to affect the liability of the Government to a serviceman who sustains service-connected injuries, 340 U.S., at 143, 71 S.Ct., at 157, it makes equally little sense to permit that situs to affect the Government's liability to a Government contractor for the identical injury.
14
(2) The second factor considered by Feres is somewhat more difficult to apply. Petitioner argues that the existence of a generous military compensation scheme (from which Captain Donham has benefited and will continue to benefit, supra, at 667-668) is of little comfort to it. It is contended that, although it may be fair to prohibit direct recovery by servicemen under the Act, since they are assured of compensation regardless of fault under the Veterans' Benefits Act, petitioner as a third-party claimant should not be barred from indemnity for damages which it may be required to pay to the serviceman, and as to which it has no alternative federal remedy.
15
A compensation scheme such as the Veterans' Benefits Act serves a dual purpose: it not only provides a swift, efficient remedy for the injured serviceman, but it also clothes the Government in the "protective mantle of the Act's limitation-of-liability provisions." See Cooper Stevedoring Co. v. Kopke, Inc., 417 U.S. 106, 115, 94 S.Ct. 2174, 2179, 40 L.Ed.2d 694 (1974). Given the broad exposure of the Government, and the great variability in the potentially applicable tort law, see Feres, 340 U.S., at 142-143, 71 S.Ct. at 157, the military compensation scheme provides an upper limit of liability for the Government as to service-connected injuries. To permit petitioner's claim would circumvent this limitation, thereby frustrating one of the essential features of the Veterans' Benefits Act. As we stated in a somewhat different context concerning the Tort Claims Act: "To permit (petitioner) to proceed . . . here would be to judicially admit at the back door that which has been legislatively turned away at the front door. We do not believe that the (Federal Tort Claims) Act permits such a result." Laird v. Nelms, 406 U.S. 797, 802, 92 S.Ct. 1899, 1902, 32 L.Ed.2d 499 (1972).
16
(3) Turning to the third factor, it seems quite clear that where the case concerns an injury sustained by a soldier while on duty, the effect of the action upon military discipline is identical whether the suit is brought by the soldier directly or by a third party. The litigation would take virtually the identical form in either case, and at issue would be the degree of fault, if any, on the part of the Government's agents and the effect upon the serviceman's safety. The trial would, in either case, involve second-guessing military orders, and would often require members of the Armed Services to testify in court as to each other's decisions and actions. This factor, too, weighs against permitting any recovery by petitioner against the United States.
17
(4, 5) We conclude, therefore, that the third-party indemnity action in this case is unavailable for essentially the same reasons that the direct action by Donham is barred by Feres. The factors considered by the Feres court are largely applicable in this type of case as well; hence, the right of a third party to recover in an indemnity action against the United States recognized in Yellow Cab, must be held limited by the rationale of Feres where the injured party is a serviceman. Since the relationship between the United States and petitioner is based on a commercial contract, there is no basis for a claim of unfairness in this result.8
18
Accordingly, the judgment of the Court of Appeals is
19
Affirmed.
20
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
21
The opinion of the Court appears to be premised on the theory that in any case involving a member of the military on active duty, Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), displaces the plain language of the Tort Claims Act. I cannot agree that that narrow, judicially created exception to the waiver of sovereign immunity contained in the Act should be extended to any category of litigation other than suits against the Government by active-duty servicemen based on injuries incurred while on duty.
22
Even if Feres is not to be strictly limited, I do not agree that its extension to cover this case is justified. The Court's explanation simply does not differentiate this suit by a corporation against the Government from similar suits that the Tort Claims Act does allow. See, e. g., United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951).
23
The first factor relied upon by the Court is the "distinctively federal" relationship between the Government and "its suppliers of ordnance." Ante, at 672. It is true, of course, that the military performs "a unique, nationwide function," ibid., but so do the Bureau of the Census, the Immigration and Naturalization Service, and many other agencies of the Federal Government. These agencies, like the military, may have personnel and equipment in all parts of the country. Nevertheless, Congress has made private rights against the Government depend on "the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b), and presumably the Court agrees that this provision governs the rights of suppliers to nonmilitary agencies. Nothing in the Court's opinion explains why it concludes that the relationship between the Government and those suppliers differs from its relationship to purveyors of military equipment.
24
The Court also concludes that compensation payments to an injured serviceman under the Veterans' Benefits Act, 38 U.S.C. § 321 et seq., place an absolute upper limit on the Government's liability for service-connected injuries. Yet, nothing in that Act suggests that it is designed to place on third parties, such as petitioner, the burden of fully compensating injuries to servicemen when the Government is at fault. Indeed, the Veterans' Benefits Act does not even contain an explicit declaration that it is the exclusive remedy against the Government for a serviceman's injury. The comparable compensation program for civilian employees of the Government does contain such a limitation of liability. 5 U.S.C. § 8116 (c).* Yet we have held that the broad language of the exclusivity provision in the civilian compensation scheme does not affect "the rights of unrelated third parties," Weyerhaeuser S. S. Co. v. United States, 372 U.S. 597, 601, 83 S.Ct. 926, 929, 10 L.Ed.2d 1 (1963), and the lower courts have allowed indemnity suits identical to petitioner's to proceed despite that provision. See, e. g., Travelers Ins. Co. v. United States, 3 Cir., 493 F.2d 881 (CA3 1974). The Court fails to explain why the absence of an exclusivity provision in the Veterans' Benefits Act forecloses suits by third parties in cases involving injuries to military personnel when the existence of such a clause does not bar similar actions when the injured employee works for one of the Government's civilian agencies.
25
Finally, the Court claims to find in this action a threat to military discipline. It is clear that the basis of Feres was the Court's concern with the disruption of "(t)he peculiar and special relationship of the soldier to his superiors" that might result if the soldier were allowed to hale his superiors into court. See United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954). That problem does not arise when a nonmilitary third party brings suit.
26
The majority's argument that whether petitioner or the injured serviceman sues is of no import because the trial would take the same form in either case proves far too much. Had the same malfunction in the pilot eject system that caused the serviceman's injuries here also caused that system to plunge into a civilian's house, the injured civilian would unquestionably have a cause of action under the Tort Claims Act against the Government. He might also sue petitioner, which might, as it has done here, cross-claim against the Government. In that hypothetical case, as well as in the case before us, there would be the same chance that the trial would "involve second-guessing military orders, and would . . . require members of the Armed Services to testify in court as to each other's decisions and actions." Ante, at 673. Yet there would be no basis, in Feres or in the Tort Claims Act, for concluding that the suit is barred because of the nature of the evidence to be produced at trial. There is no basis for reaching that conclusion here.
27
I respectfully dissent.
1
Captain Donham was at the time assigned for training to the 131st Tactical Fighter Group, Missouri Air National Guard.
2
There is no contractual relationship between the United States and Stencel. Stencel contracted with North American Rockwell, the prime Government contractor, to provide the F-100's pilot eject system.
3
Stencel's indemnity claim is based upon the law of Missouri. See, e. g., Feinstein v. Edward Livingston & Sons, Inc., 457 S.W.2d 789, 792-793 (Mo.1970); Kansas City Southern R. Co. v. Payway Feed Mills, Inc., 338 S.W.2d 1 (Mo.1960). The FTCA, of course, insofar as it is applicable, fixes the liability of the United States with reference to "the law of the place where the (wrongful) act or omission occurred." 28 U.S.C. § 1346(b).
4
Still pending in the District Court is Donham's action against Stencel and against Mills Manufacturing Corp., another alleged tortfeasor.
5
The District Court had properly certified its judgment as final pursuant to Fed.Rule Civ.Proc. 54(b), thereby making immediate appeal by Stencel appropriate.
6
The Circuits have been far from uniform in their treatment of this issue. The view taken by the Eighth Circuit in this case was first adopted by the Ninth Circuit in United Air Lines, Inc. v. Wiener, 335 F.2d 379, 404, cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964), and has been recently reaffirmed in Adams v. General Dynamics Corp., 9 Cir., 535 F.2d 489, 491 (1976), cert. pending, No. 76-220. Positions which appear inconsistent with this view have been adopted by the Tenth Circuit in Barr v. Brezina Constr. Co., 464 F.2d 1141, 1143-1144 (1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973), and by the Fifth Circuit in Certain Underwriters at Lloyd's v. United States, 511 F.2d 159, 163 (1975).
7
The Court considered two additional cases involving alleged negligence of army officials. Jefferson v. United States, O.T.1950, No. 29, and United States v. Griggs, O.T.1950, No. 31. It is unnecessary, for present purposes, to detail the fact situations involved in these two cases.
8
Since the first Circuit case to hold such actions barred by Feres was decided in 1964, see n. 6, supra, petitioner no doubt had sufficient notice so as to take this risk into account in negotiating its contract for the emergency eject system at issue here.
*
"The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute. . . . "
| 78
|
432 U.S. 40
97 S.Ct. 2915
53 L.Ed.2d 94
UNITED STATES, plaintiff,v.State of CALIFORNIA.
No. 5, Orig.
Supreme Court of the United States
June 13, 1977
1
The joint motion for entry of a second supplemental decree is granted.
SECOND SUPPLEMENTAL DECREE
2
For the purpose of identifying with greater particularity parts of the boundary line, as defined by the Supplemental Decree of January 31, 1966, 382 U.S. 448, 86 S.Ct. 607, 15 L.Ed.2d 517, between the submerged lands of the United States and the submerged lands of the State of California, it is ORDERED, ADJUDGED AND DECREED that this Court's Supplemental Decree of January 31, 1966, be, and the same is hereby, further supplemented as follows:
3
1. Closing Lines Across Entrances to Bodies of Inland Waters
4
a. The inland waters of the following bodies of water are enclosed by straight lines between the mean lower low-water lines at the seaward ends of the jetties located at their mouths:
1. Humboldt Bay
2. Port Hueneme
3. Santa Ana River
5
4. Agua Hediona Lagoon b. The inland waters of San Francisco Bay are those enclosed by a series of straight lines from the southwestern head of Point Bonita (37$48$56$N, 122$31$44$W); thence to the western edge of an unnamed island immediately to the south (37$48$55$N, 122$31$44.2$W); thence southward to the western edge of a second unnamed island (37$48$53$N, 122$31$44$W); thence southward to the western edge of a third unnamed island (37$46$57$N, 122$30$52$W); thence to a western head of Point Lobos (37$46$53$N, 122$30$49$W). The length of this closing line is 2.18 nautical miles.
6
c. The inland waters of Bodega-Tomales Bay are those enclosed by a straight line drawn from Bodega Head (38$17$53.8$N, 123$03$25.3$W); thence to the western edge of an unnamed island northwest of Tomales Point (38$14$28.4$N, 122$59$41.5$W); thence southward to Tomales Point (38$14$26.5$N, 122$59$39$W).
7
d. The closing lines delineated in the foregoing paragraph are part of the coastline of California. The foregoing is without prejudice to the right of either party to assert or deny that other closing lines are part of the coastline of California for purposes of establishing the Federal-State boundary line under the Submerged Lands Act, 67 Stat. 29, as amended.
2. Artificial Extensions of the Coastline
8
The mean lower low-water line along each of the following structures is part of the coastline of California for purposes of establishing the Federal-State boundary line under the Submerged Lands Act:
9
a. The Morro Bay breakwater
10
b. The Port San Luis breakwater
11
c. The Santa Barbara breakwater
12
d. The Ventura Marina breakwater
13
e. The Channel Islands Harbor breakwater f. Three rubble groins at Point Mugu
14
g. The Santa Monica breakwater
15
h. The venice Beach groin
16
i. The Marina del Rey breakwater
17
j. Three rubble groins along Dockweiler Beach
18
k. The Redondo Beach breakwater
19
l. Two harbor jetties at Newport Bay
20
m. The Dana Point breakwater
21
n. The Oceanside breakwater
22
o. Two harbor jetties at entrance to Mission Bay
23
p. The Zuniga jetty at San Diego (including the southern seaward end of this entire structure)
24
The foregoing is without prejudice to the right of either party to assert or deny that other artificial structures are part of the coastline of California for purposes of establishing the Federal-State boundary line under the Submerged Lands Act.
25
3. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree or to effectuate the rights of the parties in the premises.
| 910
|
432 U.S. 23
97 S.Ct. 2141
53 L.Ed.2d 80
Phillip Jerome LEE, Petitioner,v.UNITED STATES.
No. 76-5187.
Argued April 25, 1977.
Decided June 13, 1977.
Syllabus
After the prosecutor's opening statement in petitioner's bench trial for theft in violation of the Assimilative Crimes Act and the applicable Indiana statute, petitioner's counsel moved to dismiss the information on the ground that it did not allege specific intent as required by the Indiana statute. The court tentatively denied the motion subject to further study, whereupon petitioner's counsel outlined the defense and did not object to going forward with the trial. At the close of the evidence the court, though observing that petitioner's guilt had been proved beyond any reasonable doubt, granted petitioner's motion to dismiss. Thereafter, petitioner was indicted for the same crime and convicted. The Court of Appeals affirmed, rejecting petitioner's claim that the Double Jeopardy Clause barred the second trial. Petitioner contends that (1) he should never have had to undergo the first trial because the court was made aware of the defective information before jeopardy had attached, and (2) once the court had determined to hear evidence despite the defective charge, he was entitled to have the trial proceed to a formal finding of guilt or innocence. Held: Petitioner's retrial after dismissal of the defective information at his request did not violate the Double Jeopardy Clause. Pp. 27-34.
(a) The proceedings against petitioner did not terminate in his favor, the dismissal clearly not being predicated on any judgment that he could never be prosecuted for or convicted of the theft. The order entered by the District Court was functionally indistinguishable from a declaration of mistrial, which contemplates reprosecution of the defendant, see United States v. Jorn, 400 U.S. 470, 476, 91 S.Ct. 547, 552-553, 27 L.Ed.2d 543. Thus any distinction between dismissals and mistrials has no significance in the circumstances here presented, and established double jeopardy principles governing the permissibility of retrial after a declaration of mistrial fully apply in this case. United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250, distinguished. Pp. 28-31.
(b) Where a defendant, by requesting a mistrial exercises his choice in favor of terminating the trial the Double Jeopardy Clause will not bar reprosecution absent provocative or bad-faith conduct by the judge or prosecutor. United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081-1082, 47 L.Ed.2d 267. Here, as in Dinitz, the proceedings were terminated after jeopardy had attached at the defendant's request and with his consent, and there was no judicial or prosecutorial error that was intended to provoke the motion or that was otherwise motivated by bad faith. The prosecutor's failure properly to draft the information was at most negligent, and the District Court's failure to postpone the taking of evidence until it could fully consider petitioner's motion was entirely reasonable in light of the last-minute timing of the motion and defense counsel's failure to request a continuance or otherwise stress the importance to petitioner of not being placed in jeopardy on a defective charge. Pp. 33-34.
539 F.2d 612, affirmed.
Joseph P. Bauer, Notre Dame, Ind., for the petitioner.
Andrew L. Frey, Washington, D. C., for the respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
At the first trial in this case the District Court, having heard the evidence, granted petitioner's motion to dismiss the information for failure to provide adequate notice of the crime charged. Petitioner was retried and convicted. The question is whether the second trial violated the Double Jeopardy Clause.
2
* On December 21, 1973, petitioner Phillip Jerome Lee stole two billfolds from the blind operator of a newsstand and candy concession in the lobby of the United States Post Office in Fort Wayne, Ind. A security guard saw Lee take the billfolds and apprehended him as he tried to escape. In an information filed on February 6, 1974, in the United States District Court for the Northern District of Indiana, the Government charged Lee with the crime of theft in violation of the Assimilative Crimes Act, 18 U.S.C. § 13, and the applicable Indiana statute, Ind.Code Ann. § 10-3030 (1971).1 Although the defect did not come to light before trial, the allegations of the information were incomplete. The Indiana statute requires proof that the theft be committed knowingly and with intent to deprive the victim of his property. The information made no mention of knowledge or intent and charged only that Lee "did take and steal" the billfolds in violation of the statute. App. 4.
3
Some two months before trial, Lee's lawyer withdrew and another was appointed to represent him. Lee waived his right to a jury trial and on July 16, 1974, a bench trial began as scheduled. After the prosecutor's opening statement, Lee's new lawyer moved to dismiss the information. The court remarked that the timing of the motion would make full consideration difficult:
4
"Well, I will consider it, but you certainly were in the case before this morning. It is difficult to deal with a motion to dismiss if you raise any technical questions, and you don't give me the opportunity in advance of trial to research them. So I will hear you, but you have that problem." Id., at 8.
5
Counsel then called the court's attention to the lack of any allegation of knowledge or intent in the information. Referring the court to the Indiana case of Miller v. State, 250 Ind. 338, 236 N.E.2d 173 (1968), he argued that if an information failed to charge the specific intent required by § 103030, "then the Information must be dismissed." App. 9. The court tentatively denied the motion:
6
"Well, since I have had no opportunity to study this at all, I will deny the motion at this time, but at my first opportunity I will check your citation and give consideration as appears to be warranted.
7
"Is there anything further by way of opening statement?" Ibid.
8
Defense counsel proceeded to outline Lee's defense. He offered no objection to going forward with the trial subject to the court's further study of his motion to dismiss.
9
The trial lasted less than two hours. After the Government had presented its case, consisting of the testimony of the security guard and the victim, the court recessed for 15 minutes. After the recess Lee moved for a judgment of acquittal on the ground that the prosecution had failed to establish the required intent to deprive the victim of his property. Taking care to distinguish this motion from the earlier motion to dismiss on which it had "reserved the right to do some research," the court found sufficient evidence of intent to withstand any motion "directed to the Government's proof." Id., at 12-13.
10
The defense then rested without presenting any evidence, and the court returned to the defense motions, again distinguishing between them. Speaking to defense counsel, the court said:
11
"Your motion addressed to the Government's proof borders on being frivolous. Your client has been proven (sic ) beyond any reasonable doubt in the world, there is no question about his guilt; none whatsoever." Id., at 13.
12
The court nonetheless found it necessary to grant the motion to dismiss because of the failure of the information to charge either knowledge or intent:
13
"The Federal law cases are legion that the sufficiency of the charges is dependent upon its containing the allegations of all of the elements, and all of the elements here are established by the state statute.
14
"As much as I dislike doing so, I have no alternative but to grant your original motion of dismissal and the charge is dismissed." Id., at 14.2
15
On September 25, 1974, Lee again was charged with the theft, this time in an indictment alleging all of the elements of the assimilated Indiana crime. On substantially the same evidence as had been presented at the first trial, he was convicted. On appeal, the Court of Appeals for the Seventh Circuit affirmed, rejecting Lee's claim that the second trial was barred by the Double Jeopardy Clause. 539 F.2d 612 (1976). We granted certiorari to consider the double jeopardy issue. 429 U.S. 1037, 97 S.Ct. 731, 50 L.Ed.2d 748 (1977).
II
16
(1) In urging that his second trial was barred by the Double Jeopardy Clause, petitioner directs his principal arguments to the conduct of the first proceeding. He contends (i) that he should never have had to undergo the first trial because the court was made aware of the defective information before jeopardy had attached;3 and (ii) that once the court had determined to hear evidence despite the defective charge, he was entitled to have the trial proceed to a formal finding of guilt or innocence. The Government responds that petitioner had only himself to blame in both respects. By the last-minute timing of his motion to dismiss, he virtually assured the attachment of jeopardy; and by failing to withdraw the motion after jeopardy had attached, he virtually invited the court to interrupt the proceedings before formalizing a finding on the merits.4 We think that the Government has the better of the argument on both points under the principles explained in our decision in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).
17
The arguments of both sides proceed from the premise that the result in this case would be no different had the District Court characterized its termination of the first trial as a declaration of mistrial rather than a dismissal of the information.5 We too begin with this premise, although we think it requires qualification in light of United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975).
18
In Jenkins the District Court, having heard the evidence in a bench trial, dismissed an indictment charging refusal to submit to induction into the Armed Services. Under the law of the Second Circuit as it stood at the time of the offense, the induction order was improper and the defendant could not be convicted, although a subsequent decision of this Court had held otherwise. Reasoning that retroactive application of the intervening decision would be unfair, the District Court held that it could not "permit the criminal prosecution of the defendant . . . without seriously eroding fundamental and basic equitable principles of law." 349 F.Supp. 1068, 1073 (EDNY 1972), quoted at 420 U.S., at 362, 95 S.Ct., at 1009.6 On this basis, and without entering any general finding of guilt or innocence, the District Court dismissed the indictment and discharged the defendant.
19
The issue before this Court was whether a Government appeal from the District Court's order would violate the Double Jeopardy Clause. Because of the absence of any general finding of guilt, it was clear that if the Government prevailed on the merits of its appeal, further trial proceedings would be needed to resolve "factual issues going to the elements of the offense charged." Id., at 370, 95 S.Ct., at 1013.7 We held that such proceedings would violate the double jeopardy guarantee: "The trial, which could have resulted in a judgment of conviction, has long since terminated in respondent's favor." Ibid. In resting our decision on this ground, we recognized that it was "of critical importance" that the proceedings in the trial court had terminated "in the defendant's favor" rather than in a mistrial. Id., at 365 n. 7, 95 S.Ct., at 1011.8
20
(2, 3) The distinction drawn by Jenkins does not turn on whether the District Court labels its action a "dismissal" or a "declaration of mistrial." The critical question is whether the order contemplates an end to all prosecution of the defendant for the offense charged. A mistrial ruling invariably rests on grounds consistent with reprosecution, see United States v. Jorn, 400 U.S. 470, 476, 91 S.Ct. 547, 552, 27 L.Ed.2d 543 (1971) (plurality opinion), while a dismissal may or may not do so. Where a midtrial dismissal is granted on the ground, correct or not, that the defendant simply cannot be convicted of the offense charged, Jenkins establishes that further prosecution is barred by the Double Jeopardy Clause.
21
In the present case, the proceedings against Lee cannot be said to have terminated in his favor. The dismissal clearly was not predicated on any judgment that Lee could never be prosecuted for or convicted of the theft of the two wallets. To the contrary, the District Court stressed that the only obstacle to a conviction was that the fact that the information had been drawn improperly. The error, like any prosecutorial or judicial error that necessitates a mistrial, was one that could be avoided absent any double jeopardy bar by beginning anew the prosecution of the defendant. And there can be a little doubt that the court granted the motion to dismiss in this case in contemplation of just such a second prosecution. In short, the order entered by the District Court was functionally indistinguishable from a declaration of mistrial.9
22
We conclude that the distinction between dismissals and mistrials has no significance in the circumstances here presented and that established double jeopardy principles governing the permissibility of retrial after a declaration of mistrial are fully applicable.
B
23
When the District Court terminated the first trial in this case it did not act sua sponte but in response to a motion by defense counsel. In United States v. Dinitz, we examined the permissibility of retrial in an analogous situation where the trial court had granted a defense motion for mistrial.
24
In that case, after jeopardy had attached but well before verdict, the trial judge had excluded one of the defendant's lawyers from the courtroom for repeatedly disregarding his instructions. The defendant's remaining lawyer moved for a mistrial and the court granted the motion. The defendant was indicted again on the same charge, his double jeopardy claims were rejected, and he was convicted. When the double jeopardy issue reached this Court, we held that the defendant's second trial on the same charge did not violate the Fifth Amendment.
25
Writing for the Court, Mr. Justice STEWART reiterated the rule that " 'where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error.' " 424 U.S., at 607, 96 S.Ct., at 1080 quoting United States v. Jorn, supra, 400 U.S., at 485, 91 S.Ct., at 557 (plurality opinion). Recognizing that a prejudicial error committed by court or prosecutor generally presents the defendant with a "Hobson's choice," Mr. Justice STEWART nevertheless stressed the importance of preserving the defendant's "primary control over the course to be followed in the event of such error." 424 U.S., at 609, 96 S.Ct., at 1081.
26
"Even when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire 'to go to the first jury and, perhaps end the dispute then and there with an acquittal.' United States v. Jorn, supra, 400 U.S., at 484, 91 S.Ct. 547. Our prior decisions recognize the defendant's right to pursue this course in the absence of circumstances of manifest necessity requiring a sua sponte judicial declaration of mistrial. But it is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant's mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions." Id., at 608, 96 S.Ct. at 1080.
27
Where the defendant, by requesting a mistrial, exercised his choice in favor of terminating the trial, the Double Jeopardy Clause generally would not stand in the way of reprosecution. Only if the underlying error was "motivated by bad faith or undertaken to harass or prejudice," id., at 611, 96 S.Ct., at 1082, would there be any barrier to retrial:
28
"The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where 'bad-faith conduct by judge or prosecutor,' United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547, threatens the '(h)arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant. Downum v. United States, 372 U.S. (734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963)). . . ." Ibid.
29
It remains only to apply these principles to the present case.
C
30
(4) In this case, as in Dinitz, the proceedings were terminated at the defendant's request and with his consent. Although petitioner's motion to dismiss the information was initially denied in the course of opening arguments just before the attachment of jeopardy, the court's remarks left little doubt that the denial was subject to further consideration at an available opportunity in the proceedings a fact of which the court reminded counsel after the close of the prosecution's evidence. Counsel for petitioner made no effort to withdraw the motion, either after the initial denial or after the court's reminder that the motion was still under consideration. And counsel offered no objection when the court, having expressed its views on petitioner's guilt, decided to terminate the proceedings without having entered any formal finding on the general issue.
31
It follows under Dinitz that there was no double jeopardy barrier to petitioner's retrial unless the judicial or prosecutorial error that prompted petitioner's motion was "intended to provoke" the motion or was otherwise "motivated by bad faith or undertaken to harass or prejudice" petitioner. Supra, at 33. Here, two underlying errors are alleged: the prosecutor's failure to draft the information properly and the court's denial of the motion to dismiss prior to the attachment of jeopardy. Neither error even assuming the court's action could be so characterized was the product of the kind of overreaching outlined in Dinitz. The drafting error was at most an act of negligence, as prejudicial to the Government as to the defendant. And the court's failure to postpone the taking of evidence until it could give full consideration to the defendant's motion, far from evidencing bad faith, was entirely reasonable in light of the last-minute timing of the motion and the failure of counsel to request a continuance or otherwise impress upon the court the importance to petitioner of not being placed in jeopardy on a defective charge.10
32
We hold that petitioner's retrial after dismissal of the defective information at his request did not violate the Double Jeopardy Clause.
33
Affirmed.
34
Mr. Justice BRENNAN, concurring.
35
I join the Court's opinion. In so doing, I want to make plain that I read the opinion as signaling no retreat from a cardinal principle of double jeopardy law: A criminal defendant possesses a "valued right to have his trial completed by a particular tribunal," Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), and the trial judge is obligated to take reasonable action in protection of this right, United States v. Jorn, 400 U.S. 470, 485-486, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion). In the present case I agree with the Court that the conduct of the prosecutor did not constitute unfair overreaching, and the conduct of the District Court was "entirely reasonable" in proceeding with the trial and ruling on petitioner's motion after further study. Although jeopardy had not officially attached, the defendant's motion to dismiss the information appeared so late in the day during the opening statements as virtually to guarantee that the trial judge would act as he did. This is especially true in the case of a challenge to an information charging an assimilated crime, for prudence might well counsel a federal judge's delaying any ruling pending further study. Certainly, in this case the District Court cannot be faulted for failing to foresee that defendant's legal contention would be so easily resolved. While a continuance of the trial would have been a possibility if sought by petitioner or even on the court's own motion, I agree that the trial judge performed reasonably in not sua sponte stopping a trial in the middle of the opening statements and before any evidence was taken.
36
I emphasize, however, that an entirely different case would be presented if the petitioner had afforded the trial judge ample opportunity to rule on his motion prior to trial, and the court, in failing to take advantage of this opportunity, permitted the attachment of jeopardy before ordering the dismissal of the information. In such a circumstance, the court's action or inaction would effectively deprive petitioner of his "valued right" to receive a factual determination from the first empaneled factfinder and would subject a defendant to the "embarrassment, expense and ordeal" of a needless trial, Green v. united States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Even if the defendant renews his motion at trial, it would not be accurate in such a situation to argue that the defense has made the choice to forgo the right of presenting its case to the first factfinder in order to attain a beneficial legal ruling. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. at 557. On the contrary, the defendant placed in this predicament by the trial judge would have done everything in his power to receive a fair adjudication of his legal claims without compromising his right to proceed with the first factfinder. Honoring his double jeopardy claim thus not only is in keeping with the policies and interests served by the Clause, but also would further the cause of efficient judicial administration by encouraging defendants to present, and judges to rule, on legal claims prior to the clamor and heat of trial.
37
Mr. Justice REHNQUIST, concurring.
38
When two Terms ago the Court decided Jenkins v. United States, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), and United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), I had thought that a precedential foundation had been laid for double jeopardy analysis which, though perhaps somewhat oversimplified, would at least afford all of the many courts in the country which must decide such questions explicit guidance as to what we deemed the Constitution to require. I thought that dismissals (as opposed to mistrials) if they occurred at a stage of the proceeding after which jeopardy had attached, but prior to the factfinder's conclusion as to guilt or innocence, were final so far as the accused defendant was concerned and could not be appealed by the Government because retrial was barred by double jeopardy. This made the issue of double jeopardy turn very largely on temporal considerations if the Court granted an order of dismissal during the factfinding stage of the proceedings, the defendant could not be reprosecuted, but if the dismissal came later, he could. I had thought that United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), and Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), offered a different basis for the treatment of mistrials, which by definition contemplate a second prosecution.
39
This "bright line" analysis was circumvented, however, by the Court's decision in United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), in which I did not take part. There the Court held that even though the judgment of acquittal by the court (which I would not treat differently from a judgment of dismissal) occurred after the factfinding portion of the proceedings had aborted in a mistrial, but before the attachment of any jeopardy in a second trial, the second trial was nonetheless barred by double jeopardy.
40
In view of this development, I feel free to re-examine the assumptions I made when writing Jenkins and voting in Wilson. I think that the Court's opinion in the present case, though not completely in accord with those assumptions, is a well-articulated and historically defensible exposition of the Double Jeopardy Clause of the Bill of Rights. Since my assumptions did not at any rate survive United States v. Martin Linen Supply Co., supra, I join the Court's opinion.
41
Mr. Justice MARSHALL, dissenting.
42
It is apparent to me that this Court has today deliberately passed up an opportunity to exercise its supervisory power to prohibit rather than to condone fundamental errors in criminal procedure. At the close of its opinion, ante, at 2148, the Court states the problem and its solution:
43
"Here, two underlying errors are alleged: the prosecutor's failure to draft the information properly and the court's denial of the motion to dismiss prior to the attachment of jeopardy. Neither error even assuming the court's action could be so characterized was the product of the kind of overreaching outlined in Dinitz. The drafting error was at most an act of negligence, as prejudicial to the Government as to the defendant. And the Court's failure to postpone the taking of evidence until it could give full consideration to the defendant's motion, far from evidencing bad faith, was entirely reasonable in light of the last-minute timing of the motion and the failure of counsel to request a continuance or otherwise impress upon the court the importance to petitioner of not being placed in jeopardy on a defective charge."
44
Throughout today's opinion, my Brother POWELL puts all of the blame on petitioner's lawyer, none on the United States Attorney and, indeed, does not even mention him. Sole responsibility for the faulty information was in the office of the United States Attorney. Even when drafting errors are committed, they can be corrected before judgment, Fed.Rule Crim.Proc. 7(e). In this case the United States Attorney never made any effort to defend the information and did not offer to amend and correct the error. Certainly most of the responsibility for the erroneous first trial rests with the Government. "(T) hough the attorney for the sovereign must prosecute with earnestness and vigor, he must always be faithful to his client's overriding interest that 'justice shall be done.' " United States v. Agurs, 427 U.S. 97, 110-111, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976).1
45
When the motion to dismiss the information was made, the court ruled: "Well, since I have had no opportunity to study this at all, I will deny the motion at this time, but at my first opportunity I will check your citation and give consideration as appears to be warranted." App. 9. Less than two hours thereafter the court recessed for 15 minutes and dismissed the information with the following comment:
46
"As much as I dislike doing so, I have no alternative but to grant your original motion of dismissal and the charge is dismissed.
47
" . . . I don't know who drafted it, but I can tell you if a law clerk of mine out of law school drafted something like that, I would send him back for a refresher course.
48
You may carry that complete message back to your department." Id., at 14.
49
Can there be any doubt that if the 15-minute recess had been taken at the beginning of the trial the motion would have been granted before jeopardy attached?2
50
Since petitioner was needlessly placed in jeopardy twice for the same offense over his objection, I would reverse his conviction.
1
The statute provides in pertinent part that a person commits theft when he "knowingly . . . obtains or exerts unauthorized control over property of the owner . . . and . . . intends to deprive the owner of the use or benefit of the property . . . ." This provision has been repealed effective July 1, 1977.
2
Federal Rule Crim.Proc. 7(e) provides that a district court
"may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."
At no time in the course of the first trial did either the defense or the prosecution raise the possibility that the information might be amended under this provision.
3
As this was a bench trial, jeopardy did not attach until the court began to hear evidence. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975).
4
Both sides assume that the District Court's statements, made to justify denial of Lee's motion for judgment of acquittal, that he had been "proven (sic ) beyond any reasonable doubt in the world" and that there was "no question about his guilt; none whatsoever," supra, at 26, do not amount to a general finding of guilt. We agree that the court's comments, in the context in which they were made, cannot be viewed fairly as a general finding of guilt analogous to a jury verdict. See n. 7, infra.
5
In a single footnote to his main brief, petitioner appears to rely on a distinction "between an action terminated by mistrial and one terminated by dismissal." Brief for Petitioner 18 n. 25. But in the text of that brief petitioner consistently assumes that the permissibility of retrial is controlled by the same considerations in either case. Id., at 14-25. And at oral argument, counsel conceded that "whether (the termination of the first trial) is characterized as a mis-trial or characterized as a dismissal, the result in this case must be the same." Tr. of Oral Arg. 17.
6
The findings and conclusions accompanying the District Court's order left it unclear whether the court had ruled only that the intervening decision was not retroactive or had found, in addition, that the defendant's reliance on prior law had deprived him of the required criminal intent. See 420 U.S., at 362 n. 3, and 367-368, 95 S.Ct., at 1009 n. 3, and 1012.
7
In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), we held that the Double Jeopardy Clause would permit a Government appeal from a post-verdict ruling because the only result of reversal would be reinstatement of the verdict. But in Jenkins the District Court had not reached a general finding of guilt that could be reinstated if the Government prevailed on the merits of its appeal. We noted that "(e)ven if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings." 420 U.S., at 370, 95 S.Ct., at 1013.
8
The Court of Appeals had held that the order dismissing the indictment was an acquittal since the District Court had relied on facts developed at trial and had concluded that the statute should not be applied to Jenkins "as a matter of fact." 490 F.2d 868, 878 (CA2 1973), quoted at 420 U.S., at 364, 95 S.Ct., at 1010. Our disposition made it unnecessary to address the validity of this reasoning. We recently made it clear that a trial court's ruling in favor of the defendant is an acquittal only if it "actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977). In this case, petitioner concedes, as he must, that the District Court's termination of the first trial was not an acquittal.
9
In Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), a state prosecutor made precisely the same mistake as was made in this case in drafting an indictment for theft. Discovery of the defect in the course of trial led the trial court to declare a mistrial over the defendant's objection. We held that termination of the trial was dictated by "manifest necessity" under the standard first articulated in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824). There is no reason to believe that Somerville would have been analyzed differently if the trial judge, like the District Court here, had labeled his action a "dismissal" rather than a mistrial. In Jenkins we referred specifically to Somerville in distinguishing proceedings that end in mistrials from those that end "in the defendant's favor." 420 U.S., at 365 n. 7, 95 S.Ct., at 1011 n.7.
10
What has been said is sufficient to dispose of petitioner's further claim that his retrial violated the Due Process Clause of the Fifth Amendment. Cf. Palko v. Connecticut, 302 U.S. 319, 328, 58 S.Ct. 149, 153, 82 L.Ed. 288 (1937).
1
"A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process." Barker v. Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 2190, 33 L.Ed.2d 101 (1972) (footnotes omitted).
2
Since this was a bench trial without a jury there was not even a need to call a "recess"; the Judge could have postponed the taking of testimony for 15 minutes.
| 01
|
431 U.S. 801
97 S.Ct. 2132
53 L.Ed.2d 1
Louis J. LEFKOWITZ, Attorney General of the State of New York, Appellant,v.Patrick J. CUNNINGHAM et al.
No. 76-260.
Argued Feb. 29 March 1, 1977.
Decided June 13, 1977.
Syllabus
A New York statute provides that if an officer of a political party subpoenaed by a grand jury or other authorized tribunal to testify concerning the conduct of his office refuses to testify or to waive immunity against subsequent criminal prosecution, his term of office shall terminate and he shall be disqualified from holding any other party or public office for five years. Appellee, an attorney, was divested of his state political party offices pursuant to this statute when, in response to a subpoena, he appeared before a grand jury and refused to waive his constitutional immunity. He then brought suit in Federal District Court, which granted him declaratory and injunctive relief against enforcement of the statute on the ground that it violated his Fifth and Fourteenth Amendment rights. Held: The statute violated appellee's right to be free of compelled self-incrimination under the Fifth Amendment. Pp. 804-809.
(a) Government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel testimony that has not been immunized. Pp. 804-806.
(b) The statute was coercive against appellee because it threatened him with loss of powerful offices and because the compelled forfeiture of those offices would diminish his general reputation in the community, would, as economic consequences, harm his professional standing as a practicing lawyer and bar him from holding any other party or public office for five years, and would impinge on his First Amendment right to participate in private, voluntary political associations. Pp. 807-808.
(c) The State's overriding interest in preserving public confidence in the integrity of its political process is insufficient to justify forcing its citizens to incriminate themselves. P. 808.
(d) The State's dilemma in being forced to choose between an accounting from, and a prosecution of, a party officer is created by its own transactional immunity law, whereas the more limited use immunity required by the Fifth Amendment would permit the State to compel testimony without forfeiting the opportunity to prosecute the witness on the basis of evidence derived from other sources. Pp. 808-809.
420 F.Supp. 1004, affirmed.
Irving Galt, New York City, for appellant.
Michael E. Tigar, Washington, D.C., for appellees.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
This appeal presents the question whether a political party officer can be removed from his position by the State of New York and barred for five years from holding any other party or public office, because he has refused to waive his constitutional privilege against compelled self-incrimination.
2
(1)
3
Under § 22 of the New York Election Law,1 an officer of a political party may be subpoenaed by a grand jury or other authorized tribunal and required to testify concerning his conduct of the party office he occupies. If the officer refuses to answer any question, or if he declines to waive immunity from the use of his testimony against him in a later prosecution, the statute immediately terminates his party office and prohibits him from holding any other party or public office for a period of five years.
4
In December 1975, appellee Patrick J. Cunningham (hereafter appellee) was subpoenaed pursuant to § 22 to appear and testify before a special grand jury authorized to investigate his conduct in the political offices he then held, which consisted of four unsalaried elective positions in the Democratic Party of the State of New York.2 Appellee moved to quash the subpoena in the state courts, arguing in part that § 22 violated his federal constitutional right to be free of compelled self-incrimination; his motion was denied. In re Cunningham v. Nadjari, 51 A.D.2d 927, aff'd, 39 N.Y.2d 314, 383 N.Y.S.2d 590, 347 N.E.2d 915 (1976). On April 12, 1976, he appeared before the grand jury in response to the subpoena. Appellee refused to sign a waiver of immunity form which would have waived his constitutional right not to be compelled to incriminate himself.3 Because § 22 is self-executing, appellee's refusal to waive his constitutional immunity automatically divested him of all his party offices and activated the five-year ban on holding any public or party office.
5
The following day, appellee commenced this action in the United States District Court for the Southern District of New York. After hearing, the District Judge entered a temporary restraining order against enforcement of § 22. A three-judge court was then convened, and that court granted appellee declaratory and permanent injunctive relief against enforcement of § 22 on the ground that it violated appellee's Fifth and Fourteenth Amendment rights. We noted probable jurisdiction, 429 U.S. 893, 97 S.Ct. 252, 50 L.Ed.2d 176 (1976). We affirm.
6
(2)
7
We begin with the proposition that the Fifth Amendment privilege against compelled self-incrimination protects grand jury witnesses from being forced to give testimony which may later be used to convict them in a criminal proceeding. See, e.g., United States v. Washington, 431 U.S. 181, 186-187, 97 S.Ct. 1814, 1818-1819, 52 L.Ed.2d 238. Moreover, since the test is whether the testimony might later subject the witness to criminal prosecution, the privilege is available to a witness in a civil proceeding, as well as to a defendant in a criminal prosecution. Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653 (1964). In either situation the witness may "refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant." Lefkowitz v. Turley, 414 U.S. 70, 78, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973).
8
Thus, when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment and cannot be used against the declarant in a subsequent criminal prosecution. In Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), for example, police officers under investigation were told that if they declined to answer potentially incriminating questions they would be removed from office, but that any answers they did give could be used against them in a criminal prosecution. We held that statements given under such circumstances were made involuntarily and could not be used to convict the officers of crime.
9
Similarly, our cases have established that a State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself. In Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), a police officer appearing before a grand jury investigating official corruption was subject to discharge if he did not waive his Fifth Amendment privilege and answer, without immunity, all questions asked of him. When he refused, and his employment was terminated, this Court held that the officer could not be discharged solely for his refusal to forfeit the rights guaranteed him by the Fifth Amendment; the privilege against compelled self-incrimination could not abide any "attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment." Id., at 279, 88 S.Ct. at 1916. Accord, Uniformed Sanitation Men Ass'n. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). At the same time, the Court provided for effectuation of the important public interest in securing from public employees an accounting of their public trust. Public employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties if they have not been required to surrender their constitutional immunity. Gardner, supra, 392 U.S. at 278-279, 88 S.Ct. at 1916.
10
We affirmed the teaching of Gardner more recently in Lefkowitz v. Turley, supra, where two architects who did occasional work for the State of New York refused to waive their Fifth Amendment privilege before a grand jury investigating corruption in public contracting practices. State law provided that if a contractor refused to surrender his constitutional privilege before a grand jury, his existing state contracts would be canceled, and he would be barred from future contracts with the State for five years. The Court saw no constitutional distinction between discharging a public employee and depriving an independent contractor of the opportunity to secure public contracts; in both cases the State had sought to compel testimony by imposing a sanction as the price of invoking the Fifth Amendment right.
11
These cases settle that government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel testimony which has not been immunized. It is true, as appellant points out, that our earlier cases were concerned with penalties having a substantial economic impact. But the touchstone of the Fifth Amendment is compulsion, and direct economic sanctions and imprisonment are not the only penalties capable of forcing the self-incrimination which the Amendment forbids.
(3)
12
Section 22 confronted appellee with grave consequences solely because he refused to waive immunity from prosecution and give self-incriminating testimony. Section 22 is therefore constitutionally indistinguishable from the coercive provisions we struck down in Gardner, Sanitation Men, and Turley. Appellee's party offices carry substantial prestige and political influence, giving him a powerful voice in recommending or selecting candidates for office and in other political decisions. The threatened loss of such widely sought positions, with their power and prerequisites, is inherently coercive. Additionally, compelled forfeiture of these posts diminishes appellee's general reputation in his community.
13
There are also economic consequences; appellee's professional standing as a practicing lawyer would suffer by his removal from his political offices under these circumstances. Further, § 22 bars appellee from holding any other party or public office for five years. Many such offices carry substantial compensation. Appellant argues that appellee has no enforceable property interest in future office, but neither did the architects in Turley have an enforceable claim to future government contracts. Nevertheless, we found that disqualification from eligibility for such contracts was a substantial economic burden. In assessing the coercion which § 22 exerts, we must take into account potential economic benefits realistically likely of attainment. Prudent persons weigh heavily such legally unenforceable prospects in making decisions; to that extent, removal of those prospects constitutes economic coercion.4
14
Section 22 is coercive for yet another reason: It requires appellee to forfeit one constitutionally protected right as the price for exercising another. See Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968). As an officer in a private political party, appellee is in a far different position from a government policymaking official holding office at the pleasure of the President or Governor. By depriving appellee of his offices, § 22 impinges on his right to participate in private, voluntary political associations. That right is an important aspect of First Amendment freedom which this Court has consistently found entitled to constitutional protection. Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).
15
Appellant argues that even if § 22 is violative of Fifth Amendment rights, the State's overriding interest in preserving public confidence in the integrity of its political process justifies the constitutional infringement. We have already rejected the notion that citizens may be forced to incriminate themselves because it serves a governmental need. E. g., Lefkowitz v. Turley, 414 U.S., at 78-79, 94 S.Ct., at 322-323. Government has compelling interests in maintaining an honest police force and civil service, but this Court did not permit those interests to justify infringement of Fifth Amendment rights in Garrity, Gardner, and Sanitation Men, where alternative methods of promoting state aims were no more apparent than here.5
16
(4)
17
It may be, as appellant contends, that "(a) State forced to choose between an accounting from or a prosecution of a party officer is in an intolerable position." Brief for Appellant 12-13. But this dilemma is created by New York's transactional immunity law, which immunizes grand jury witnesses from prosecution for any transaction about which they testify. The more limited use immunity required by the Fifth Amendment would permit the State to prosecute appellee for any crime of which he may be guilty in connection with his party office, provided only that his own compelled testimony is not used to convict him. Once proper use immunity is granted, the State may use its contempt powers to compel testimony concerning the conduct of public office, without forfeiting the opportunity to prosecute the witness on the basis of evidence derived from other sources.
Accordingly, the judgment is
18
Affirmed.
19
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
20
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring in part.
21
I join the Court's judgment, for the reasons stated in Parts (1), (2), and (3) of its opinion. I cannot, however, join Part (4), because I continue to believe that "the Fifth Amendment privilege against self-incrimination requires that any jurisdiction that compels a man to incriminate himself grant him absolute immunity under its laws from prosecution for any transaction revealed in that testimony." Piccirillo v. New York, 400 U.S. 548, 562, 91 S.Ct. 520, 527, 27 L.Ed.2d 596 (1971) (Brennan, J., dissenting). See also Kastigar v. United States, 406 U.S. 441, 462, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972) (Douglas, J., dissenting); id., at 467, 92 S.Ct. at 1668. (Marshall, J., dissenting). Moreover, even on the Court's assumption that a lesser immunity is sufficient to satisfy the requirements of the Fifth Amendment, I question the propriety of the Court's suggestion that the New York Legislature's decision to grant additional protection to the Fifth Amendment rights of grand jury witnesses was somehow contrary to the State's best interests.
22
Mr. Justice STEVENS, dissenting.
23
The First Amendment protects the individual's right to speak and to believe in accordance with the dictates of his own conscience. But if he believes in peace at any price and speaks out against a strong military, the President may decide not to nominate him for the office of Secretary of Defense. If he already occupies a comparable policymaking office, the President may remove him as a result of his exercise of First Amendment rights. The fact that the Constitution protects the exercise of the right does not mean that it also protects the speaker's "right" to hold high public office.1
24
The Fifth Amendment protects the individual's right to remain silent. The central purpose of the privilege against compulsory self-incrimination is to avoid unfair criminal trials. It is an expression of our conviction that the defendant in a criminal case must be presumed innocent, and that the State has the burden of proving guilt without resorting to an inquisition of the accused.2
25
Just as constitutionally protected speech may disclose a valid reason for terminating the speaker's employment, so may constitutionally protected silence provide a valid reason for refusing or terminating employment in certain sensitive public positions. Thus a person nominated to an office which may not be filled without the consent of the Senate could exercise his right not to incriminate himself during questioning by a Senate committee, but no one would doubt the Senate's constitutional power to withhold its consent for that very reason. Nor can there be any doubt concerning the President's power to discharge any White House aide who might assert his Fifth Amendment privilege in response to a charge that he had used his office to conceal wrongdoing or to solicit illegal campaign contributions.
26
I see no reason why there should be any greater doubt concerning a state governor's power to discharge an appointed member of his personal staff who asserts his Fifth Amendment privilege before a grand jury investigating accusations of influence peddling in state government.3 And since a constitutional limitation on the power of the "government," see ante, at 806, applies equally to the legislature and the executive, a statutory restriction is no more objectionable than an executive order.
27
My comments thus far have related to policymaking officials who seek or occupy positions which have no exact counterpart in the private sector of the economy. In our democracy, their power to govern is ultimately derived from, and dependent upon, the sanction of the citizenry they serve. Their performance in office not only must satisfy high standards of competence and efficiency but must also inspire confidence in the integrity of their leadership.4 For that reason, conditions may appropriately be attached to the holding of high public office that would be entirely inappropriate for the vast majority of government employees whose work is not significantly different from that performed in the private sector.5
28
The Court has decided in the past that workers such as sanitation men employed by a state-chartered municipality may not be threatened with the loss of their livelihood in order to compel them to waive their privilege against self-incrimination.6 Neither that decision, nor any in its line,7 controls this case. For rules which protect the rights of government workers whose jobs are not fundamentally different from positions in other areas of society are not automatically applicable to policymaking officials of government.8
29
Appellee Cunningham (hereinafter appellee) is a policymaking official occupying a sensitive position in the government of the State of New York. He is chairman of the State Democratic Committee and of the Bronx County Democratic Executive Committee. By virtue of holding those party positions he performs several important statutory offices for the State of New York.9 If "heed is to be given to the realities of political life, (he is one of) the instruments by which government becomes a living thing." Nixon v. Condon, 286 U.S. 73, 84, 52 S.Ct. 484, 485, 76 L.Ed. 984. The leaders of a major political party "are not acting in matters of merely private concern like the directors or agents of business corporations. They are acting in matters of high public interest, matters intimately connected with the capacity of government to exercise its functions unbrokenly and smoothly." Id., at 88, 52 S.Ct., at 487.
30
The State has a legitimate interest, not only in preventing actual corruption, but also in avoiding the appearance of corruption10 among those it favors with sensitive, policymaking office. If such a person wishes to exercise his constitutional right to remain silent and refuses to waive his privilege against compulsory self-incrimination, I see no reason why the State should not have the power to remove him from office.11
31
I recognize that procedures are available by which the State may compel any of its employees to render an accounting of his or her office in exchange for a grant of immunity.12 But the availability of that alternative does not require us to conclude that our highest public officers may refuse to respond to legitimate inquiries and remain in office unless they are first granted immunity from criminal prosecution. The Fifth Amendment does not require the State to pay such a price to effect the removal of an officer whose claim of privilege can only erode the public's confidence in its government.
32
The New York statute, if enforced, will require the state chairman to make a choice between silence and public service. Appellee was on notice of this possibility when he accepted his offices.13 He has an unquestioned constitutional right to choose either alternative. The choice may indeed be a difficult one for him to make. In constitutional terms, however, I see no difference between his choice and that confronted by many other public-spirited citizens who are at once asked to serve their country and to respond publicly to any suggestion of wrongdoing that may be advanced by any hostile or curious witness. The fact that such a choice may be difficult is not a reason for saying that the State has no power to require an officeholder or officeseeker to make it.
33
I respectfully dissent.
1
"If any party officer shall, after lawful notice of process, wilfully refuse or fail to appear before any court or judge, grand jury, legislative committee, officer, board or body authorized to conduct any hearing or inquiry concerning the conduct of his party office or the performance of his duties, or having appeared, shall refuse to testify or answer any relevant question, or shall refuse to sign a waiver of immunity against subsequent criminal prosecution, his term or tenure of office shall terminate, such office shall be vacant and he shall be disqualified from holding any party or public office for a period of five years." N.Y.Elec.Law § 22 (McKinney 1964).
New York Election Law § 2(9) (McKinney 1964) defines a party officer as "one who holds any party position or any party office whether by election, appointment or otherwise."
2
Appellee was chairman of the State Democratic Committee and the Bronx County Democratic Executive Committee, and a member of the Executive Committee of the New York State Democratic Committee and the Bronx County Democratic Executive Committee. We are advised that appellee has recently resigned as chairman of the state organization. He retains his other party offices.
3
In the absence of an effective waiver, New York law would have entitled appellee to transactional immunity from prosecution on all matters about which he testified. N.Y.Crim.Proc.Law §§ 50.10, 190.40, 190.45 (McKinney 1971 and Supp. 1976-1977). As appellant concedes, however, Tr. of Oral Arg. 4-5, and as the record reflects, the State also insisted on a waiver of the more limited use immunity which we have held essential to protect Fifth Amendment rights. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).
The waiver form which appellee's counsel represents is presented to grand jury witnesses waives "all immunity and privileges which I would otherwise obtain under the provisions of the Constitution of the United States and of the State of New York" and further "consent(s) to the use against me of the testimony so given . . . upon any criminal trial, investigation, prosecution or proceeding." McKinney's Forms for the Criminal Procedure Law § 190.45, Form 1 (1971). See N.Y.Crim.Proc.Law § 190.45. Appellee's refusal to sign this waiver form, pressed on him immediately before taking the oath, was in these circumstances an effective assertion of his Fifth Amendment privilege.
Of course, New York's procedure in this regard is not constitutionally required. Rather than permit an assertion of the Fifth Amendment privilege to confer immunity with respect to all matters testified to before the grand jury, New York could, if it chose, require a witness to assert his constitutional privilege to the specific questions he deems potentially incriminating, withholding constitutional use immunity until the validity of the assertion is upheld.
4
That appellee's refusal to waive immunity and answer questions concerning his conduct of office may have already damaged his reputation and standing is irrelevant to the issues in this case; it is inescapable that public judgments are often made on such factors.
5
Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), is not to the contrary. That case involved an administrative disciplinary proceeding in which the respondent was advised that he was not required to testify, but that if he chose to remain silent his silence could be considered against him. Baxter did no more than permit an inference to be drawn in a civil case from a party's refusal to testify. Respondent's silence in Baxter was only one of a number of factors to be considered by the finder of fact in assessing a penalty, and was given no more probative value than the facts of the case warranted; here, refusal to waive the Fifth Amendment privilege leads automatically and without more to imposition of sanctions.
1
It is often incorrectly assumed that whenever an individual right is sufficiently important to receive constitutional protection, that protection implicitly guarantees that the exercise of the right shall be cost free. Nothing could be further from the truth. The right to representation by counsel of one's choice, for example, may require the defendant in a criminal case to pay a staggering price to employ the lawyer he selects. Insistence on a jury trial may increase the cost of defense. The right to send one's children to a private school, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, may be exercised only by one prepared to pay the associated tuition cost.
2
E. Griswold, The Fifth Amendment Today 1-8 (1955); L. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination (1968); Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va.L.Rev. 763 (1935). The privilege has engendered a great deal of legal scholarship over the years. See Dean Griswold's thoughtful review of the literature and of his own writings in The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960). See also Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U.Cin.L.Rev. 671, 706-708 (1968).
3
See, e. g., Scott v. Philadelphia Parking Auth., 402 Pa. 151, 154, 166 A.2d 278, 280-281 (1960); Mitchell v. Chester Housing Auth., 389 Pa. 314, 328, 132 A.2d 873, 880 (1957).
4
Note, A Constitutional Analysis of the Spoils System, 57 Iowa L.Rev. 1320, 1321 n.12 (1972); Note, 17 Vill.L.Rev. 750, 753-754 (1972); Note, 26 Vand.L.Rev. 1090, 1092 n.12 (1973).
A line of cases in the Seventh Circuit has addressed the distinction between policymaking and nonpolicymaking state employees, Indiana State Employees Assn., Inc. v. Negley, 501 F.2d 1239 (1974); Adams v. Walker, 492 F.2d 1003, 1007 (1974); Illinois State Employees Union, Council 34 v. Lewis, 473 F.2d 561, 574 (1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590; Gould v. Walker, 356 F.Supp. 421 (N.D.Ill.1973). See Pickering v. Board of Education, 391 U.S. 563, 570 and n.3, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811.
5
See Orloff v. Willoughby, 345 U.S. 83, 90-92, 73 S.Ct. 534, 538-539, 97 L.Ed. 842; Napolitano v. Ward, 457 F.2d 279 (C.A.7 1972).
6
Sanitation Men v. Sanitation Comm'r, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089.
7
Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274; Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082; Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562.
8
Cf. Elrod v. Burns, 427 U.S. 347, 367-368, 96 S.Ct. 2673, 2686-87, 49 L.Ed.2d 547 (plurality opinion); Sugarman v. Dougall, 413 U.S. 634, 642-643, 93 S.Ct. 2842, 2847-2848, 37 L.Ed.2d 853; United Public Workers v. Mitchell, 330 U.S. 75, 115, 122-123, 67 S.Ct. 556, 577, 580-581, 91 L.Ed. 754 (Douglas, J., dissenting in part); Myers v. United States, 272 U.S. 52, 240-241, 47 S.Ct. 21, 66-67, 71 L.Ed. 160 (Brandeis, J., dissenting); Indiana State Employees Assn. Inc. v. Negley, supra; Mow Sun Wong v. Hampton, 500 F.2d 1031, 1040 (C.A.9 1974), aff'd, 426 U.S. 88, 95-96, 96 S.Ct. 1895, 1901-1902, 48 L.Ed.2d 495; Leonard v. Douglas, 116 U.S.App.D.C. 136, 321 F.2d 749 (1963).
9
Appellee selects nominees for commissioner of the State Board of Elections, which administers New York elections, N.Y.Elec.Law § 468 (McKinney Supp. 1976-1977). He has similar powers with respect to local election officers, §§ 31, 40, 45 (McKinney 1964). The committees he chairs have the power to designate candidates for office in party primary elections, § 131(2), to fill vacancies which occur in the party slate in Bronx County, §§ 131, 140, and to nominate Democratic electors for the offices of President and Vice President of the United States, § 131(1).
10
See Buckley v. Valeo, 424 U.S. 1, 25-27, 96 S.Ct. 612, 638, 46 L.Ed.2d 659. To the extent that it legitimizes the Government's concern with the integrity of the election process, Buckley is particularly apposite here. The majority of the appellee's statutory powers concern the administration and enforcement of New York's election laws.
11
Of course, it may not do so because it wishes to punish him for the exercise of his right, or as a substitute punishment for the crimes of which he might be suspected. But the State does have a legitimate interest in the integrity, and in the appearance of integrity, of those serving in its governing core. Cf. In re Daley, 549 F.2d 469, 474-477 (C.A.7 1977).
Appellee's removal from a statutorily recognized state political office does not deprive him of his right to associate for political reasons, see ante, at 807-808. The impact on this right is surely no more significant than the impact of the statute on his privilege against compulsory self-incrimination. For § 22 leaves appellee free to participate in Democratic Party political activities in all the capacities recognized as protected by our right-to-associate cases.
Nor does this case present the question whether the imposition of the five-year ban on holding state office contained in § 22 may be invalid as a penalty.
12
The failure to tender immunity was the critical missing element which invalidated the discharges of the policeman in Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082, and the sanitation men in Sanitation Men v. Sanitation Comm'r, 392 U.S. 280, 284-285, 88 S.Ct. 1917, 1919-20, 20 L.Ed.2d 1089:
"If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity v. New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal." Gardner v. Broderick, supra, 392 U.S., at 278, 88 S.Ct., at 1916.
I recognize that Gardner v. Broderick and Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, make it clear that law enforcement officers are indistinguishable from other government employees as far as the privilege against compulsory self-incrimination is concerned. In view of the large measure of state power and public trust we grant our police, I am not sure that I would have joined those decisions. But extension of the largest measure of the Fifth Amendment privilege to the police does not require its further extension to this case. See supra, at 812 (text to n.7).
13
Section 22 was enacted in 1949, years before appellee gained his chairmanships.
| 01
|
431 U.S. 864
97 S.Ct. 2150
53 L.Ed.2d 48
UNITED STATES et al., Petitioners,v.Nicholas J. LARIONOFF, Jr., et al.
No. 76-413.
Argued April 27, 1977.
Decided June 13, 1977.
Syllabus
Respondent enlisted members of the United States Navy and others similarly situated, who agreed to extend their enlistments at a time when a statute provided for a Variable Re-enlistment Bonus (VRB), in addition to the Regular Re-enlistment Bonus (RRB), for members of the Armed Forces whose ratings were classified as a "critical military skill" held entitled to VRB's determined according to the award level in effect at the time they agreed to extend their enlistments, notwithstanding that the Navy eliminated their ratings from the "critical military skill" list before they began serving their extended enlistments, and that the statutes authorizing the RRB and VRB were repealed and a new Selective Re-enlistment Bonus (SRB) substituted before one of the respondents began to serve his extended enlistment. Pp. 869-882.
(a) Implementing regulations requiring that the amount of the VRB to be awarded to an enlisted member who extended his enlistment be determined by reference to the award level in effect at the time he began to serve his extended enlistment, rather than at the time he agreed to the extension, are invalid as being contrary to Congress' purpose, as manifested by the legislative history, in enacting the VRB program as an inducement to selected service members to extend their period of service. Whether a service member re-enlists or agrees to extend his enlistment, the VRB could only be effective as a selective incentive to extension of service if at the time he made his decision the service member could count on receiving it if he elected to remain in the service. Pp. 869-877.
(b) There is nothing in either the language or legislative history of the statute repealing the RRB and VRB system and establishing a new bonus system to show any intention on the part of Congress to affect the rights of those service members who had extended their enlistments and became entitled to receive VRB's. Pp. 878-882.
175 U.S.App.D.C. 32, 533 F.2d 1167, affirmed.
Keith A. Jones, Washington, D.C., for the petitioners.
Stephen Daniel Keeffe, Washington, D.C., for the respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Seven enlisted members of the United States Navy brought this class action in the District Court for the District of Columbia under the Tucker Act, 28 U.S.C. § 1346(a)(2), alleging that their agreements to extend their enlistments, made at various times from 1968 to 1970, entitled each of them to payment of a re-enlistment bonus. The District Court ordered that the bonuses be paid, 365 F.Supp. 140 (1973), and the Court of Appeals for the District of Columbia Circuit affirmed. 175 U.S.App.D.C. 32, 533 F.2d 1167 (1976). We granted certiorari, 429 U.S. 997, 97 S.Ct. 522, 50 L.Ed.2d 607 (1976). We affirm.
2
* From early in our history, Congress has provided by statute for payment of a re-enlistment bonus to members of the Armed Services who re-enlisted upon expiration of their term of service, or who agreed to extend their period of service before its expiration.1 Prior to the enactment of Pub.L. No. 89-132, 79 Stat. 547 (1965), this bonus was determined for an enlistee's first re-enlistment or extension of enlistment by multiplying his monthly pay at the time of expiration of the initial period of service by the number of years specified in the re-enlistment agreement. See former 37 U.S.C. §§ 308(a), (b).
3
The perceived defect of this system was that "it failed to vary the monetary incentive for reenlistment according to the needs of the armed services for personnel with particular skills." 175 U.S.App.D.C., at 38, 533 F.2d, at 1173. Consequently, Congress enacted former 37 U.S.C. § 308(g), which authorized the services to provide, in addition to the Regular Re-enlistment Bonus (RRB) just described, a Variable Re-enlistment Bonus (VRB) to members of the Armed Services whose particular skills were in short supply. The VRB was to be a multiple, no greater than four, of the RRB.2
4
This program was in effect when respondent Nicholas J. Larionoff enlisted in the Navy for four years on June 23, 1969.3 Shortly after his enlistment, Larionoff chose to participate in a Navy training program, completion of which would qualify him for the service rating "Communications Technician Maintenance" (CTM). At that time, as Larionoff was aware,4 the CTM rating was classified by Navy regulations as a "critical military skill," whose holders were eligible upon re-enlistment or extension of enlistment for payment of a a VRB in the amount of four times the RRB, the highest allowable rate. Before entering the training program, which entailed a six-year service obligation, Larionoff entered a written agreement to extend his enlistment "in consideration of the pay, allowances, and benefits which will accrue to me during the continuance of my service." Larionoff successfully completed the program and was advanced to the CTM rating, expecting to receive a VRB upon entering the period of his extended enlistment on June 23, 1973.5
5
On March 24, 1972, however, the Navy announced that effective July 1, 1972, the CTM rating would no longer be considered a "critical military skill" eligible for a VRB. When Larionoff, through his congressional representatives, inquired into his continued eligibility for a VRB, he was informed that since the CTM rating was no longer listed, he would not receive the expected bonus. Accordingly, in March 1973, respondents filed this lawsuit, and in September of that year the District Court certified a class and granted summary judgment for respondents, ordering payment of the disputed VRB's.
6
(1) While the Government's appeal of this order was pending in the Court of Appeals, Congress repealed the statutes authorizing both the RRB and the VRB, and substituted a new Selective Re-enlistment Bonus (SRB), effective June 1, 1974. Armed Forces Enlisted Personnel Bonus Revision Act of 1974, 88 Stat. 119, 37 U.S.C. § 308 (1970 ed., Supp. V). The Government concedes that this action had no effect on six of the named respondents; like Larionoff, they were scheduled to begin serving their extended enlistments prior to the effective date of the Act, and therefore should have received their VRB's, if at all, while the program was still in effect.6 Respondent Johnnie S. Johnson, however, first enlisted in the Navy in August 1970, and did not begin serving his extended enlistment until August 1974. The Court of Appeals was thus confronted with two questions: (1) whether Larionoff and those in his position were entitled to receive VRB's despite the Navy's elimination of their rating from the eligible list in the period after their agreement to extend their enlistments but before they began serving those extensions; and (2) whether Johnson and others in his situation were entitled to receive VRB's despite the repeal of the VRB program in the same period. The Court of Appeals held that both were entitled to receive VRB's.
II
A.
7
(2) Both the Government and respondents recognize that "(a) soldier's entitlement to pay is dependent upon statutory right," Bell v. United States, 366 U.S. 393, 401, 81 S.Ct. 1230, 1235, 6 L.Ed.2d 365 (1961), and that accordingly the rights of the affected service members must be determined by reference to the statutes and regulations governing the VRB, rather than to ordinary contract principles.7 In this case, the relevant statute, former 37 U.S.C. § 308(g), provided:
8
"Under regulations to be prescribed by the Secretary of Defense, . . . a member who is designated as having a critical military skill and who is entitled to (an RRB) upon his first reenlistment may be paid an additional amount not more than four times the amount of (the RRB)."
9
The regulations governing individual eligibility were set forth in Department of Defense Instruction 1304.15, P V.B.1 (Sept. 3, 1970).8
10
The Government contends that these eligibility criteria are to be applied as of the time the enlisted member completes service of his original enlistment and enters into the extended enlistment. This is a reasonable construction, since the statute requires that the VRB not be paid until that time. See n. 5, supra. At that time, it is argued, respondents did not satisfy two related criteria prescribed by P V.B.1, although it is conceded they met the others. First, they were not then "serving . . . in a military specialty designated" as a critical military skill, P V.B.1.a, since the CTM rating was by that time no longer so designate; second, they had not "(a)ttain(ed) eligibility prior to the effective date of termination of awards" for the CTM rating. P V.B.1.f.
11
The Government also relies upon the regulations governing the amount of the award to be received. Under Department of Defense Directive 1304.14, P IV.F (Sept. 3, 1970):
12
"When a military skill is designated for reduction or termination of award an effective date for reduction or termination of awards shall be established and announced to the field at least 90 days in advance. All awards on or after that effective date in military skills designated for reduction of award level will be at the level effective that date and no new awards will be made on or after the effective date in military skills designated for termination of awards."9 (Emphasis added.)
13
Similarly, Department of Defense Instruction 1304.15, supra, P VI.A, stated:
14
"Members serving in a military specialty designated for reduction or termination of award under the provisions of subsection IV.F. of (Directive 1304.14, supra) will receive the award level effective on the date of their reenlistment or extension of enlistment, except at provided in paragraph V.B.l.f. above."10
15
The Government argues that these regulations, read together, establish that respondents were entitled to receive only the VRB in effect for their service rating at the time the period of their original enlistment ended, and the extended enlistment began.
16
(3) These regulations, as the Court of Appeals pointed out and the Government freely concedes, contain a number of ambiguities. See 175 U.S.App.D.C., at 40-42, 533 F.2d, at 1175-1177. We need not tarry, however, over the various ambiguous terms and complex interrelations of the regulations. In construing administrative regulations, "the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). See also INS v. Stanisic, 395 U.S. 62, 89 S.Ct. 1519, 23 L.Ed.2d 101 (1969). The Government represents, and respondents do not seriously dispute, that throughout the period in which the VRB program was in effect, the Navy interpreted the Department of Defense regulations as entitling an enlisted member who extends his enlistment to the VRB level, if any, in effect at the time he began to serve the extended enlistment.11 Since this interpretation is not plainly inconsistent with the wording of the regulations, we accept the Government's reading of those regulations as correct.
B
17
(4, 5) This, however, does not end our inquiry. For regulations, in order to be valid must be consistent with the statute under which they are promulgated.12 We are persuaded that insofar as they required that the amount of the VRB to be awarded to a service member who extended his enlistment was to be determined by reference to the award level in effect at the time he began to serve the extension, rather than at the time he agreed to it, the relevant regulations were contrary to the manifest purposes of Congress in enacting the VRB program, and hence invalid.13
18
The legislative history of the VRB statute makes those congressional purposes crystal clear. As noted above, the re-enlistment bonus scheme in effect before 1965, which relied entirely on the RRB, was criticized for providing the same re-enlistment incentive to all members of the Armed Services, regardless of the need for their skills. The Defense Department desired greater flexibility in calibrating re-enlistment incentives to its manpower needs. The additional expenditures for the VRB were expected to save money in the long run, since payment of the higher re-enlistment bonus would enable the Armed Forces to retain highly skilled individuals whose training had required a considerable investment.14 Members of Congress in the floor debates clearly recognized the wisdom of offering such incentives.15
19
The VRB was thus intended to induce selected service members to extend their period of service beyond their original enlistment. Of course, the general pay raise for the military included in the same Act was also intended to have a similar effect, by making a military career generally more attractive.16 But the VRB was expected to be a very specific sort of incentive, not only because it was aimed at a selected group of particularly desirable service members, but also because it offered an incentive "at just the time that it will be most effective, when an individual decides whether or not to reenlist." Remarks of Rep. Nedzi, 111 Cong.Rec. 17201 (1965). The then Secretary of Defense, Robert S. McNamara, made the same point to the House Armed Services Committee, in contrasting the VRB to "proficiency pay," which provides increased pay to service members with critical skills:
20
"We believe a more efficient way to provide additional reenlistment incentives to selected first termers in especially high demand is by using a variable reenlistment bonus. Monetary rewards are thereby concentrated at the first reenlistment decision point, obtaining the greatest return per dollar spent on the retention of personnel. " Hearings on Military Pay Bills before the House Committee on Armed Services, 89th Cong., 1st Sess., 2545 (June 7, 1965) (House Hearings). (Emphasis added.)
21
The then Assistant Secretary of Defense, Norman S. Paul, also distinguished the VRB from ordinary pay, stating that with the VRB the military hoped "to cure a separate specific problem by specific means, rather than overall pay." Hearings on Military Pay Increase before the Senate Committee on Armed Services, 89th Cong., 1st Sess., 41 (July 29, 1965). (Senate Hearings). The timing of the VRB was crucial to this intention:
22
"At the end of his first term of reenlistment (sic ) he is trying to make up his mind whether to stay in the military. And we think that the added bonus may push him over the line into staying with us, which is what we want to see happening." Id., at 40.17
23
(6) It is true that in discussing the VRB, Congress focused on the service member who reaches the end of his enlistment, and is faced with the decision "whether or not to reenlist." (Emphasis added.) Remarks of Rep. Nedzi, supra. But, as Congress has recognized in providing that "(a) member of the (Armed Forces) who extends his enlistment . . . is entitled to the same pay and allowances as though he had reenlisted," 37 U.S.C. § 906, precisely the same reasoning applies to the decision to extend enlistment as to the decision to re-enlist. In either case, the VRB could only be effective as a selective incentive to extension of service if at the time he made his decision the service member could count on receiving it if he elected to remain in the service.
24
This is very apparent when the VRB program is examined from the perspective of an individual who is at the point of deciding whether or not to extend an enlistment due to expire at some future date. At the time he makes this decision, he is aware that his rating or expected rating is classified as a critical military skill eligible for a VRB at a particular level. Under the plan as envisioned by Congress, and as applied by the Navy in the case of re-enlistments, the incentive operates "at just the time it will be most effective," because the service member knows that if he remains in the service, he will receive a VRB at the prescribed level. But under the contested regulations, the service member has no such reassurance. Whether or not his rating is eligible for a VRB now, it may not be at the future date on which his first enlistment expires.18 His "incentive" to extend his enlistment is the purely hypothetical possibility that he might receive a VRB if there is a personnel shortage in his skill on that date. On the other hand, if he nevertheless extends his enlistment, and if the VRB level for his rating is increased in the interval before his original term expires, he will receive a higher award than that which sufficed to induce his decision to remain in the service from the standpoint of Congress' purposes, a totally gratuitous award.19
25
The clear intention of Congress to enact a program that "concentrates monetary incestives at the first re-enlistment decision point where the greatest returns per retention dollar can be expected," Senate Hearings 26 (statement of Asst. Secy. Paul), could only be effectuated if the enlisted member at the decision point had some certainty about the incentive being offered. Instead, the challenged regulations provided for a virtual lottery.20 We therefore hold that insofar as the Defense Department regulations required that the amount of the VRB to be paid to a service member who was otherwise eligible to receive one be determined by the award level as of the time he began to serve his extended enlistment, they are in clear conflict with the congressional intention in enacting the VRB program, and hence invalid. Because Congress intended to provide at the re-enlistment decision point a promise of a reasonably certain and specific bonus for extending service in the Armed Forces, Larionoff and the members of his class are entitled, as the Court of Appeals held, to payment of VRB's determined according to the award levels in effect at the time they agreed to extend their enlistments.
III
26
This brings us to the further question of respondent Johnson's entitlement to a VRB. At the time he agreed to extend his enlistment, the VRB program was in effect and his CTM rating was classified as a critical military skill. Before he began serving the extended enlistment period, however, Congress repealed the RRB and VRB system, and substituted the new SRB. 88 Stat. 119, 37 U.S.C. § 308 (1970 ed., Supp. V). The Government contends that since the VRB had been abolished before Johnson became eligible to receive one, he is not entitled to receive a bonus. The Court of Appeals rejected this argument.21
27
What we have said above as to Larionoff goes far toward answering this question. The intention of Congress in enacting the VRB was specifically to promise to those who extended their enlistments that a VRB award would be paid to them at the expiration of their original enlistment in return for their commitment to lengthen their period of service.22 When Johnson made that commitment, by entering an agreement to extend his enlistment, he, like Larionoff, became entitled to receive at some future date a VRB at the award level then in effect (provided that he met the other eligibility criteria). Thus, unless Congress intended, in repealing the VRB program in 1974, to divest Johnson of the rights he had already earned, and constitutionally could do so, the prospective repeal of the program could not affect his right to receive a VRB, even though the date on which the bonus was to be paid had not yet arrived.
28
(7) Of course, if Congress had such an intent, serious constitutional questions would be presented. No one disputes that Congress may prospectively reduce the pay of members of the Armed Forces, even if that reduction deprived members of benefits they had expected to be able to earn. Cf. Bell v. United States, 366 U.S. 393, 81 S.Ct. 1230, 6 L.Ed.2d 365 (1961); United States v. Dickerson, 310 U.S. 554, 60 S.Ct. 1034, 84 L.Ed. 1356 (1940). It is quite a different matter, however, for Congress to deprive a service member of pay due for services already performed, but still owing. In that case, the congressional action would appear in a different constitutional light. Cf. Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934); Perry v. United States, 294 U.S. 330, 55 S.Ct. 432, 79 L.Ed. 912 (1935). In view of these problems, we would not lightly conclude, in the absence of a clear expression of congressional intent, that in amending 37 U.S.C. § 308 and establishing a new bonus system, Congress intended to affect the rights of those service members who had extended their enlistments and become entitled to receive VRB's.
29
(8) Nothing in the language of the 1974 Act or its legislative history expresses such an intention. The Act makes no reference whatever to service members who have become entitled to payment of a VRB by extending their enlistments. There is no prohibition of further payments of VRB's to those already entitled to them;23 the Act simply replaces the old § 308 with a new one that authorizes SRB's rather than RRB's and VRB's. Nor does the legislative history express any intention to effect such a prohibition. No paramount power of the Congress or important national interest justifying interference with contractual entitlements is invoked.
30
The Courts of Appeals that have upheld the Government's position have relied on two indications of a congressional intent to affect the rights of Johnson and his class. First, the 1974 Act expressly preserves the right of all service members on active duty as of the effective date of the Act to receive upon re-enlistment the RRB's they would have been entitled to before passage of the Act. Pub.L.No.93-277, § 3, 88 Stat. 121.24 The failure to include a similar saving clause as to VRB's, it is argued, indicates that Congress intended to abolish them entirely. But the saving clause for RRB's does not merely preserve them for those who had already extended their enlistments, but assures RRB's upon re-enlistment to any service member then on active duty. The failure to enact a similar provision as to VRB's indicates only that Congress did not intend that VRB's be paid to those service members who re-enlisted after the effective date of the Act, and has no bearing on those who had already extended their enlistments and become entitled to VRB's.
31
Second, reference is made to a portion of the Conference Report on the Act, indicating a congressional "understanding" that service members, like Johnson, who had already entered two-year extensions of enlistment could become eligible for an SRB by canceling the extension and replacing it with a four-year extension. H.R.Conf.Rep.No.93-985, pp. 4-5 (1974).25 This, it is argued, indicates that Congress had considered the possible unfairness that eliminating the VRB could work on members such as Johnson, and felt that it had made sufficient provision for them by making them eligible, upon a further extension of their commitment, for an SRB. But the Report does not refer to the possible unfairness of eliminating the VRB payable to those service members with whom it deals; rather, it refers to the Navy's concern that language in the legislative history might cast doubt on a commitment the Navy had made "to a man with a four-year enlistment and a two-year extension that he can cancel the two-year extension and reenlist for four years and receive a reenlistment bonus for the four-year reenlistment." Id., at 4. The Report removes any doubts about the validity of that commitment. The only relevance of the Report to the problem before us is that it demonstrates that Congress was responsive to the "concern that the language of the bill might be interpreted to require it to abrogate an understanding" between the Armed Forces and enlistees, ibid., making it less rather than more likely that Congress intended the 1974 Act to abrogate Johnson's entitlement to a VRB by implication.
32
Affirmed.
33
Mr. Justice WHITE, with whom the Chief Justice, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST join, dissenting.
34
Like the Court, I accept the Government's interpretation of the relevant Navy Department regulations, but I do not agree with the majority's view that because Congress intended by the VRB legislation irrevocably to promise a re-enlistment bonus to those who agreed in advance to re-enlist the regulations are invalid. As I see it, the legislation was not part of the re-enlistment agreement, which was executed in consideration of the pay, allowances, and benefits that would accrue during a continuance of the re-enlistee's service. Those who executed re-enlistment agreements had no vested right in any particular level of pay, in any particular allowance or benefit, or in any particular total package of pay, allowances, or benefits. In this respect, I am in essential agreement with Judge Haynsworth's opinion for the Court of Appeals for the Fourth Circuit in Carini v. United States, 528 F.2d 738 (1975), which concluded that cancellation of the VRB prior to the beginning of a re-enlistment period was not forbidden by law. I respectfully dissent.
1
The Court of Appeals opinion traces the history of this policy from 1795 to the present. 175 U.S.App.D.C., at 37-38, and n. 16, 533 F.2d, at 1172-1173, and n. 16.
2
Former 37 U.S.C. § 308(g), 79 Stat. 547, provided as follows:
"(g) Under regulations to be prescribed by the Secretary of Defense, or the Secretary of the Treasury with respect to the Coast Guard when it is not operating as a service in the Navy, a member who is designated as having a critical military skill and who is entitled to a bonus computed under subsection (a) of this section upon his first reenlistment may be paid an additional amount not more than four times the amount of that bonus. The additional amount shall be paid in equal yearly installments in each year of the reenlistment period. However, in meritorious cases the additional amount may be paid in fewer installments if the Secretary concerned determines it to be in the best interest of the members. An amount paid under this subsection does not count against the limitation prescribed by subsection (c) of this section on the total amount that may be paid under this section."
Under the Department of Defense regulations implementing the VRB program, multiples of one to four times the RRB were assigned depending on the relative urgency of the services' need for particular skills, as measured by personnel shortages and the cost of training replacement personnel. Department of Defense Directive 1304.14, PP IV.D.1.a, b (Sept. 3, 1970); Department of Defense Instruction 1304.15, PP IV.D, V.A.1, 2 (Sept. 3, 1970).
Under 37 U.S.C. § 906, "(a) member of the (Armed Forces) who extends his enlistment . . . is entitled to the same pay and allowances as though he had reenlisted."
3
Except as noted below with specific reference to respondent Johnnie S. Johnson, the facts relating to Larionoff are typical of those concerning the other named respondents.
4
Larionoff was informed of the existence of the VRB program, and its applicability to the CTM program, by a Navy "classifier" who interviewed him to determine what field within the service he should enter. Several of the other named respondents were also told of the existence of the VRB program, and in some instances the amount of the VRB they could expect to receive was calculated for them by Navy personnel, without any indication that the amount might be reduced. 175 U.S.App.D.C., at 35, 36, and nn. 6, 11, 533 F.2d, at 1170, 1171, and nn. 6, 11. These facts, contained in affidavits filed by respondents, are undisputed; while an affidavit introduced by the Government states that "it is not the policy of the Department of the Navy to promise specific eligibility for Variable Reenlistment Bonus, nor is any official authorized to make such a promise in counselling with a prospective enlistee," there is no dispute that in particular cases individual service members might, inadvertently or otherwise, be left with the impression that a VRB had been promised.
5
Under former 37 U.S.C. § 308(g), the VRB was paid "in equal yearly installments in each year of the reenlistment period."
6
But see n. 23, infra.
7
Indeed, this is implicitly recognized in the contracts executed by the named respondents, which state that they agree to extend their enlistments "in consideration of the pay, allowances, and benefits which will accrue to me during the continuance of my service," rather than stating any fixed compensation.
8
This regulation provided:
"B. Individual Eligibility for Receipt of Awards
"1. Variable Reenlistment Bonus. An enlisted member is eligible to receive a Variable Reenlistment Bonus if he meets all the following conditions:
"a. Is qualified and serving on active duty in a military specialty designated under provisions of paragraph V.A.2. above for award of the Variable Reenlistment Bonus. Members paid a Variable Reenlistment Bonus shall continue to serve in the military specialty which
qualified them for the bonus unless the Secretary of a Military Department determines that a waiver of this restriction is necessary in the interest of the Military Service concerned.
"b. Has completed at least 21 months of continuous active service other than active duty for training immediately prior to discharge, release from active duty, or extension of enlistment.
"c. Is serving in pay grade E-3 or higher.
"d. Reenlists in a regular component of the Military Service concerned within three (3) months (or within a lesser period if so prescribed by the Secretary of the Military Department concerned) after the date of his discharge or release from compulsory or voluntary active duty (other than for training), or extends his enlistment, so that the reenlistment or enlistment as extended provides a total period of continuous active service of not less than sixty-nine (69) months.
"(1) The reenlistment or extension of enlistment must be a first reenlistment or extension for which a reenlistment bonus is payable.
"(2) No reenlistment or extension accomplished for any purpose other than continued active service in the designated military specialty shall qualify a member for receipt of the Variable Reenlistment Bonus.
"(3) Continued active service in a designated military specialty shall include normal skill progression as defined in the respective Military Service classification manuals.
"e. Has not more than eight years of total active service at the time of reenlistment or extension of enlistment.
"f. Attains eligibility prior to the effective date of termination of awards in any military specialty designated for termination of the award. Member must attain eligibility prior to the effective date of a reduction of award level to be eligible for the higher award level. Eligibility attained through any modification of an existing service obligation, including any early discharge granted pursuant to 10 U.S.C. 1171, must have been attained prior to the date the authority approving the modification was notified of the prospective termination or reduction of award in the military specialty.
"g. Meets such additional eligibility criteria as may be prescribed by the Secretary of the Military Department concerned."
Instruction 1304.15 has been canceled by Department of Defense Instruction 1304.22 (June 1975).
9
Directive 1304.14 has been canceled by Department of Defense Directive 1304.21 (June 1975).
10
The reference is apparently to the last sentence of P V.B.l.f, supra, n. 8, which provided: "Eligibility attained through any modification of an existing service obligation . . . must have been attained prior to the date the authority approving the modification was notified of the prospective termination or reduction of award . . . ." The Court of Appeals interpreted this provision as intended to prevent service members from qualifying for a soon-to-be-reduced benefit level by agreeing to extend their enlistments in the interval between the announcement of the reduction in award level and the effective date of the change, and hence an implicit recognition that in the absence of such a provision service members in that position would be entitled to the higher benefit level. 175 U.S.App.D.C., at 41-42, 533 F.2d, at 1176-1177. The Government argues, however, that the purpose of P V.B.l.f was to reach the much smaller group of service members who would be in a position both to agree to extend their enlistment and to begin serving the extension within the relevant period. Tr. of Oral Arg. 15-16.
11
This has apparently been the practice regardless of whether that level was higher or lower than that in effect when the service member agreed to extend his enlistment. Id., at 45.
12
"The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is . . . (only) the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity." Manhattan General Equip. Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 400, 80 L.Ed. 528 (1936). See, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-214, 96 S.Ct. 1375, 1391, 47 L.Ed.2d 668 (1976); Dixon v. United States, 381 U.S. 68, 74, 85 S.Ct. 1301, 1305, 14 L.Ed.2d 223 (1965).
13
This argument was clearly raised in the briefs in the Court of Appeals, Brief for Plaintiffs-Appellees (Cross-Appellants) 13, Larionoff v. United States, Nos. 74-1211 and 74-1212, and in this Court, Brief for Respondents 15-18. We therefore do not regard the somewhat inconclusive colloquy at oral argument, see Tr. of Oral Arg. 29-33, as abandoning it.
14
H.R.Rep.No.549, 89th Cong., 1st Sess., 47 (1965); S.Rep.No.544, 89th Cong., 1st Sess., 14 (1965); U.S.Code Cong. & Admin.News 1965, p. 2745.
15
See, e. g., remarks of Rep. Morton, 111 Cong.Rec. 17206 (1965); remarks of Rep. Bennett, ibid.; remarks of Rep. Dole, id., at 17209; remarks of Sen. Russell, id., at 20034.
16
See, e. g., H.R.Rep.No.549, supra, at 5-6; S.Rep.No.544, supra, at 1-4.
17
The argument that the VRB would be particularly effective as an inducement to re-enlist because it would be provided at the "decision point" is a constant theme through the hearings, the committee reports, and the floor debates. See House Hearings 2545-2584 (statements of Secy. McNamara), 2671 (colloquy of Rep. Stratton and Gen. Greene); Senate Hearings 19 (statement of Secy. McNamara), 26, 40, 44 (statements of Asst. Secy. Paul); H.R.Rep.No.549, supra, at 47; S.Rep.No.544, supra, at 14; 111 Cong.Rec. 17201 (1965) (remarks of Rep. Nedzi).
18
Indeed, as the Court of Appeals pointed out, 175 U.S.App.D.C., at 43-44, n. 32, 533 F.2d, at 1178-1179, n. 32, because the regulations governing the VRB program required the various services to undertake an annual review of the military specialties in which personnel shortages existed for the purpose of adjusting VRB award levels, Department of Defense Directive 1304.14, P IV.F.1, the service member, by his very decision to extend his enlistment, would contribute to the likelihood that by the time his initial enlistment expired, his skill would no longer be in short supply and the VRB he had expected would therefore have been reduced or eliminated.
19
The effects of the challenged regulations would, of course, be less than clear to the service member deciding whether or not to extend his enlistment, and, given the complexity and ambiguity of the regulations, and the resulting possibility that they could be misconstrued by Navy recruiters as well as by the enlistees themselves, it would not be surprising if many service members, like some of the respondents here, see n. 4, supra, came to believe that by extending their enlistments they had acquired a vested right to a VRB. To the extent that such beliefs had been fostered, upholding the regulations would perpetrate a considerable injustice.
20
Of course, the enlisted service member agreeing to extend his enlistment could not have been entirely certain of the amount of his future VRB. First, the VRB was calculated according to a formula based on the amount of the RRB, which in turn depended on the re-enlistee's basic pay upon entering the re-enlistment period. At the time he agreed to extend his enlistment, the service member could not have been sure what that amount would be; Congress could alter military pay scales, or the member might be promoted or demoted, and hence his pay might change, in the interval. Second, the VRB, by both statute and regulation, was not actually paid until the service member began serving his extended enlistment, and even then was ordinarily paid in yearly installments. If for some reason the enlistee did not complete service of his extension, remaining installments were not paid, and overpayments were recouped. Department of Defense Directive 1304.14, P IV.G. Finally, receipt of any VRB at all depended on the service member's completing the requirements for eligibility before expiration of the original enlistment. See Department of Defense Instruction 1304.15, P V.B.1, n. 8. Thus, the VRB as applied to service members extending their enlistments, as opposed to those re-enlisting, was always somewhat contingent. But there is a significant difference between this sort of contingency, which was inherent in the nature of the program and in any event involved marginal effects on the amount of the award or the occurrence of rather speculative events, and the sort of uncertainty the contested regulations inject into the program, which rendered the primary determinant of the VRB entirely unpredictable at the time the decision to extend enlistment was made.
21
The decision of the Court of Appeals on this point is in conflict with the decisions in Collins v. Rumsfeld, 542 F.2d 1109 (CA9 1976), cert. pending sub nom. Saylors v. United States, No. 76-677; and Carini v. United States, 528 F.2d 738 (CA4 1975), cert. pending, No. 75-1695.
22
As noted, n. 20, supra, the precise amount of the award remained somewhat uncertain, and the award was contingent on the enlisted member's meeting certain eligibility conditions.
23
The Government's concession that the 1974 Act does not affect respondents other than Johnson implicitly admits that the Act permits such payments. Three other named respondents entered their two-year extension periods after June 1, 1973. Since the VRB was paid in yearly installments, n. 5, supra, these three would presumably still have installments due on their VRB after the Act became effective on June 1, 1974.
24
This section provides:
"Notwithstanding section 308 of title 37, United States Code, as amended by this Act, a member of a uniformed service on active duty on the effective date of this Act, who would have been eligible, at the end of his current or subsequent enlistment, for the reenlistment bonus prescribed in section 308(a) or (d) of that title, as it existed on the day before the effective date of this Act, shall continue to be eligible for the reenlistment bonus under that section as it existed on the day before the effective date of this Act. If a member is also eligible for the reenlistment bonus prescribed in that section as amended by this Act, he may elect to receive either one of those reenlistment bonuses. However, a member's eligibility under section 308(a) or (d) of that title, as it existed on the day before the effective date of this Act, terminates when he has received a total of $2,000 in reenlistment bonus payments, received under either section 308(a) or (d) of that title as it existed on the day before the effective date of this Act, or under section 308 of that title, as amended by this Act, or from a combination of both."
25
The relevant portion of the Conference Report referred to in the text states:
"Clarification of interpretation of bill language
"The House committee in reporting the bill indicated its intention that bonuses not be authorized for personnel for existing obligated service. There was brought to the attention of the conferees a problem that would exist, particularly in the Navy nuclear-power field, under the House interpretation of the language of the bill. In cases where commitment has been made to a man with a four-year enlistment and a two-year extension he can cancel the two-year extension and reenlist for four years and receive a reenlistment bonus for the four-year reenlistment. The Navy expressed great concern that the language of the bill might be interpreted to require it to abrogate an understanding it had with enlistees and would operate in such a way as to cause serious retention problems in its most critical career field. The conferees, therefore, want it understood that while it normally does not expect bonuses to be paid for services for which there was an existing obligation, it is consistent with the conferees' understanding that full
entitlement to SRB will be authorized for personnel who have already agreed to an extension period prior to the enactment of the legislation if they subsequently cancel this extension prior to its becoming operative and reenlist for a period of at least two years beyond the period of the canceled extension. Nothing in the bill should operate to deny the Chief of Naval Operations the authority to extend SRB entitlement to nuclear-power operators, if they subsequently can cancel any outstanding extension period prior to its becoming operative and reenlist for a period of at least two years beyond the period of the canceled extension."
| 12
|
432 U.S. 1
97 S.Ct. 2120
53 L.Ed.2d 63
Ewald B. NYQUIST, Commissioner of Education of New York, et al., Appellants,v.Jean-Marie MAUCLET et al.
No. 76-208.
Argued March 22, 1977.
Decided June 13, 1977.
Syllabus
New York statutory provision that bars certain resident aliens from state financial assistance for higher education held to violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 7-12.
(a) State classifications based on alienage are "inherently suspect and subject to close judicial scrutiny." Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534. P. 7.
(b) The statute discriminates against a class and is subject to strict scrutiny since it is directed at aliens and only aliens are harmed by it even though its bar against them is not absolute in that those who have applied for citizenship or those not qualified to apply who have filed statements of intent may participate in the assistance programs. Graham v. Richardson, supra ; cf. Mathews v. Lucas, 427 U.S. 495, 504-505, n. 11, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651. Pp. 7-9.
(c) Any incentive through the statute for an alien to become naturalized is not a proper state concern, since control over immigration and naturalization is exclusively a federal function. P. 10.
(d) The naturalization incentive (even if that could be accepted, arguendo, as a justification) or the further justification asserted by appellants, viz., that the financial assistance program is confined to actual or potential voters, thus enhancing the educational level of the electorate, cannot be deemed adequate to support the statute's ban. If the encouragement of naturalization through such programs were adequate, every discrimination against aliens could be similarly justified. And the claimed interest in educating the electorate would not be frustrated by including resident aliens in the assistance program. Pp. 10-12.
D.C., 406 F.Supp. 1233, affirmed.
Judith A. Gordon, New York City, for appellants.
Michael Davidson, Buffalo, N.Y., for appellee Mauclet.
Gary J. Greenberg, New York City, for appellee Rabinovitch.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
New York, by statute, bars certain resident aliens from state financial assistance for higher education. N.Y.Educ. Law § 661(3) (McKinney Supp.1976). This litigation presents a constitutional challenge to that statute.
2
* New York provides assistance, primarily in three forms, to students pursuing higher education. The first type is the Regents college scholarship. These are awarded to high school graduates on the basis of performance in a competitive examination. §§ 605(1) and 670. Currently, in the usual case, a recipient is entitled to $250 annually for four years of study without regard to need. §§ 670(2) and (3)(b).1 The second and chief form of aid is the tuition assistance award. These are noncompetitive; they are available to both graduate and undergraduate students "enrolled in approved programs and who demonstrate, the ability to complete such courses." §§ 604(1) and 667(1). The amount of the award depends on both tuition and income. The ceiling on assistance was $600, although it has been increased for undergraduates to $1,500. §§ 667(3) and (4). The third form of assistance is the student loan. §§ 680-684. The loan is guaranteed by the State; a borrower meeting certain income restrictions is entitled to favorable interest rates and generally to an interest-free grace period of at least nine months after he completes or terminates his course of study. §§ 680, 682(2) and (3).2
3
There are several general restrictions on eligibility for participation in any of these programs. § 661. For example, there is a modest durational residency requirement. § 661(5).3 The instant dispute, however, concerns only § 661(3). That subsection provides:
4
"Citizenship. An applicant (a) must be a citizen of the United States, or (b) must have made application to become a citizen, or (c) if not qualified for citizenship, must submit a statement affirming intent to apply for United States citizenship as soon as he has the qualifications, and must apply as soon as eligible for citizenship, or (d) must be an individual of a class of refugees paroled by the attorney general of the United States under his parole authority pertaining to the admission of aliens to the United States."4
5
The statute obviously serves to bar from the assistance programs the participation of all aliens who do not satisfy its terms. Since many aliens, such as those here on student visas, may be precluded by federal law from establishing a permanent residence in this country, see, e. g., 8 U.S.C. § 1101(a)(15)(F)(i); 22 CFR § 41.45 (1976), the bar of § 661(3) is of practical significance only to resident aliens. The Court has observed of this affected group: "Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society." In re Griffiths, 413 U.S. 717, 722, 93 S.Ct. 2851, 2855, 37 L.Ed.2d 910 (1973).
II
6
Appellee Jean-Marie Mauclet is a citizen of France and has lived in New York since April 1969. He has been a permanent resident of the United States since November of that year. He is married to a United States citizen and has a child by that marriage. The child is also a United States citizen. App. 49. Mauclet by affidavit stated: "Although I am presently qualified to apply for citizenship and intend to reside permanently in the United States, I do not wish to relinquish my French citizenship at this time."5 Id., at 50. He applied for a tuition assistance award to aid in meeting the expenses of his graduate studies at the State University of New York at Buffalo. Because of his refusal to apply for United States citizenship, his application was not processed. Id., at 49-50.
7
Appellee Alan Rabinovitch is a citizen of Canada. He was admitted to this country in 1964 at the age of nine as a permanent resident alien. He is unmarried and, since his admission, has lived in New York with his parents and a younger sister, all of whom are Canadian citizens. He registered with Selective Service on his 18th birthday. He graduated in 1973 from the New York public school system. Id., at 68, 71. As a result of a commendable performance on the competitive Regents Qualifying Examinations, Rabinovitch was informed that he was qualified for, and entitled to, a Regents college scholarship and tuition assistance. He later was advised, however, that the offer of the scholarship was withdrawn since he intended to retain his Canadian citizenship. Id., at 69, 25. Rabinovitch entered Brooklyn College without financial aid from the State. He states that he "does not intend to become a naturalized American, but . . . does intend to continue to reside in New York." Id., at 65.
8
Mauclet and Rabinovitch each brought suit in United States District Court (Mauclet in the Western District of New York and Rabinovitch in the Eastern District), alleging that the citizenship bar of § 661(3) was unconstitutional. The same three-judge court was convened for each of the cases. Subsequently, it was ordered that the cases be heard together. App. 45. After cross motions for summary judgment, the District Court in a unanimous opinion ruled in appellees' favor. It held that § 661(3) violated the Equal Protection Clause of the Fourteenth Amendment in that the citizenship requirement served to discriminate unconstitutionally against resident aliens.6 406 F.Supp. 1233 (WDNY and EDNY 1976). Its enforcement was enjoined in separate judgments. App. 103, 106.
9
Appellants the various individuals and corporate entities responsible for administering the State's educational assistance programs challenge this determination.7 We noted probable jurisdiction. 429 U.S. 917, 97 S.Ct. 307, 50 L.Ed.2d 282 (1976).
III
10
The Court has ruled that classifications by a State that are based on alienage are "inherently suspect and subject to close judicial scrutiny." Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971). See Examining Board v. Flores de Otero, 426 U.S. 572, 601-602, 96 S.Ct. 2264, 2281, 49 L.Ed.2d 65 (1976); In re Griffiths, 413 U.S., at 721, 93 S.Ct. at 2854, 37 L.Ed.2d 910; Sugarman v. Dougall, 413 U.S. 634, 642, 93 S.Ct. 2842, 2847, 37 L.Ed.2d 853 (1973). In undertaking this scrutiny, "the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn." Examining Board v. Flores de Otero, 426 U.S., at 605, 96 S.Ct., at 2283. See In re Griffths, 413 U.S., at 721-722, 93 S.Ct., at 2854-2855. Alienage classifications by a State that do not withstand this stringent examination cannot stand.8
11
Appellants claim that § 661(3) should not be subjected to such strict scrutiny because it does not impose a classification based on alienage.9 Aliens who have applied for citizenship, or, if not qualified for it, who have filed a statement of intent to apply as soon as they are eligible, are allowed to participate in the assistance programs. Hence, it is said, the statute distinguishes "only within the 'heterogeneous' class of aliens" and "does not distinguish between citizens and aliens vel non." Brief for Appellants 20.10 Only statutory classifications of the latter type, appellants assert, warrant strict scrutiny.
12
Graham v. Richardson, supra, undermines appellants' position. In that case, the Court considered an Arizona statute that imposed a durational residency requirement for welfare benefits on aliens but not on citizens. Like the New York statute challenged here, the Arizona statute served to discriminate only within the class of aliens: Aliens who met the durational residency requirement were entitled to welfare benefits. The Court nonetheless subjected the statute to strict scrutiny and held it unconstitutional. The important points are that § 661(3) is directed at aliens and that only aliens are harmed by it. The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class.11 Cf. Mathews v. Lucas, 427 U.S. 495, 504-505, n. 11, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651 (1976);12 Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 169, 172, 92 S.Ct. 1400, 1403, 1405, 31 L.Ed.2d 768 (1972).
13
Appellants also assert that there are adequate justifications for § 661(3). First, the section is said to offer an incentive for aliens to become naturalized. Second, the restriction on assistance to only those who are or will become eligible to vote is tailored to the purpose of the assistance program, namely, the enhancement of the educational level of the electorate. Brief for Appellants 22-25. Both justifications are claimed to be related to New York's interest in the preservation of its "political community." See Sugarman v. Dougall, 413 U.S., at 642-643, 647-649, 93 S.Ct., at 2847-2848, 2850-2851; Dunn v. Blumstein, 405 U.S. 330, 344, 92 S.Ct. 995, 1004, 31 L.Ed.2d 274 (1972).
14
The first purpose offered by the appellants, directed to what they describe as some "degree of national affinity," Brief for Appellants 18, however, is not a permissible one for a State. Control over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere. U.S.Const., Art. I, § 8, cl. 4. See Mathews v. Diaz, 426 U.S. 67, 84-85, 96 S.Ct. 1883, 1893-1894, 48 L.Ed.2d 478 (1976); Graham v. Richardson, 403 U.S., at 376-380, 91 S.Ct., at 1854-1856; Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948). But even if we accept, arguendo, the validity of the proffered justifications, we find them inadequate to support the ban.13
15
In Sugarman v. Dougall, 413 U.S., at 642, 93 S.Ct., at 2848, the Court recognized that the State's interest "in establishing its own form of government, and in limiting participation in that government to those who are within 'the basic conception of a political community' " might justify some consideration of alienage. But as Sugarman makes quite clear, the Court had in mind a State's historical and constitutional powers to define the qualifications of voters,14 or of "elective or important nonelective" officials "who participate directly in the formulation, execution, or review of broad public policy." Id., at 647, 93 S.Ct., at 2850. See id., at 648, 93 S.Ct., at 2850. In re Griffiths, decided the same day, reflects the narrowness of the exception. In that case, despite a recognition of the vital public and political role of attorneys, the Court found invalid a state-court rule limiting the practice of law to citizens. 413 U.S., at 729, 93 S.Ct., at 2858.
16
Certainly, the justifications for § 661(3) offered by appellants sweep far beyond the confines of the exception defined in Sugarman. If the encouragement of naturalization through these programs were seen as adequate, then every discrimination against aliens could be similarly justified. The exception would swallow the rule. Sugarman clearly does not tolerate that result. Nor does the claimed interest in educating the electorate provide a justification; although such education is a laudable objective, it hardly would be frustrated by including resident aliens, as well as citizens, in the State's assistance programs.15
17
Resident aliens are obligated to pay their full share of the taxes that support the assistance programs. There thus is no real unfairness in allowing resident aliens an equal right to participate in programs to which they contribute on an equal basis. And although an alien may be barred from full involvement in the political arena, he may play a role perhaps even a leadership role in other areas of import to the community. The State surely is not harmed by providing resident aliens the same educational opportunity it offers to others.
18
Since we hold that the challenged statute violates the Fourteenth Amendment's equal protection guarantee, we need not reach appellees' claim that it also intrudes upon Congress' comprehensive authority over immigration and naturalization. See Graham v. Richardson, 403 U.S., at 378, 91 S.Ct., at 1855; Truax v. Raich, 239 U.S. 33, 42, 36 S.Ct. 7, 11, 60 L.Ed. 131 (1915).
19
The judgments of the District Court are affirmed.
20
It is so ordered.
21
Mr. Chief Justice BURGER, dissenting.
22
I join with Mr. Justice REHNQUIST's and Mr. Justice POWELL's dissenting opinions, but I add this comment to point out yet other significant differences between this case and our prior cases involving alienage-based classifications.
23
With one exception, the prior cases upon which the Court purports to rely involved statutes which prohibited aliens from engaging in certain occupations or professions, thereby impairing their ability to earn a livelihood. See, e. g., Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976) (Puerto Rico statute permitted only United States citizens to practice as private civil engineers); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973) (membership in state bar limited to citizens); Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973) (participation in State's competitive civil service limited to citizens); Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948) (state statute denied fishing license to persons "ineligible to citizenship"); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915) (state constitution required employers to hire "not less than eighty (80) per cent qualified electors or native-born citizens of the United States"); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (city ordinance discriminatorily enforced against aliens so as to prevent Chinese subjects, but not United States citizens, from operating laundries within the city). The only other case striking down a classification on the basis of alienage, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), involved the denial of welfare benefits essential to sustain life for aliens, while needy citizens were given such benefits. The Court has noted elsewhere the crucial role which such benefits play in providing the poor with "means to obtain essential food, clothing, housing, and medical care." Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970) (footnote omitted).
24
In this case the State is not seeking to deprive aliens of the essential means of economic survival. Rather, pursuant to its broad power to regulate its education system, the State has chosen to provide some types of individuals those it considers most likely to provide a long-range return to the local and national community certain added benefits to facilitate participation in its system of higher education. The State is certainly not preventing aliens from obtaining an education, and indeed it is clear that appellees may attend New York colleges and universities on an equal footing with citizens. However, beyond that, the State has provided certain economic incentives to its own citizens to induce them to pursue higher studies, which in the long run will be a benefit to the State. The State has not deemed such incentives as necessary or proper as to those aliens who are unwilling to declare their commitment to the community in which they reside by declaring their intent to acquire citizenship. Such simple declaration is all that the statute requires.
25
In my view, the Constitution of the United States allows States broad latitude in carrying out such programs. Where a fundamental personal interest is not at stake and higher education is hardly that the State must be free to exercise its largesse in any reasonable manner. New York, like most other States, does not have unlimited funds to provide its residents with higher education services; it is equally clear that the State has every interest in assuring that those to whom it gives special help in obtaining an education have or declare some attachment indicating their intent to remain within the State to practice their special skills. It has no interest in providing these benefits to transients from another country who are not willing to become citizens. The line drawn by the State is not a perfect one and few lines can be but it does provide a rational means to further the State's legitimate objectives. Resident individuals who are citizens, or who declare themselves committed to the idea of becoming American citizens, are more likely to remain in the State of New York after their graduation than are aliens whose ties to their country of origin are so strong that they decline to sever them in order to secure these valuable benefits.
26
I therefore conclude that the State of New York has not acted impermissibly in refusing to dispense its limited tax revenues to give assistance to aliens who by clear implication reject the opportunity to become citizens of the United States. Beyond the specific case, I am concerned that we not obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship.
27
If a State desires and has the means nothing in the United States Constitution prevents it from voluntarily giving scholarships to aliens, even to those who reject United States citizenships. But nothing heretofore found in the Constitution compels a State to apply its finite resources to higher education of aliens who have demonstrated no permanent attachment to the United States and who refuse to apply for citizenship.
28
Mr. Justice POWELL, with whom The Chief Justice and Mr. Justice STEWART join, dissenting.
29
I am persuaded, for the reasons set forth in Mr. Justice REHNQUIST's dissent, that New York's scheme of financial assistance to higher education does not discriminate against a suspect class. The line New York has drawn in this case is not between aliens and citizens, but between aliens who prefer to retain foreign citizenship and all others.
30
"The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973).
31
Our prior cases dealing with discrimination against all aliens as a class, In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), and against subclasses of aliens without regard to ability or willingness to acquire citizenship, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), do not justify the application of strict judicial scrutiny to the legislative scheme before us today.*
32
I also agree with Mr. Justice REHNQUIST that the line New York has drawn in extending scholarship assistance in higher education is a rational one. I see no basis for the Court's statement that offering incentives to resident alien scholars to become naturalized "is not a permissible (purpose) for a State." Ante, at 10. In my view, the States have a substantial interest in encouraging allegiance to the United States on the part of all persons, including resident aliens, who have come to live within their borders. As the New York Legislature declared in enacting a predecessor to the present financial assistance scheme:
33
"The future progress of the state and nation and the general welfare of the people depend upon the individual development of the maximum number of citizens to provide the broad range of leadership, inventive genius, and source of economic and cultural growth for oncoming generations." 1961 N.Y. Laws, c. 389, § 1(a).
34
As long as its program neither discriminates "on the basis of alienage," Graham v. Richardson, supra, at 372, 91 S.Ct., at 1852, nor conflicts with federal immigration and naturalization policy, it is my view that New York legitimately may reserve its scholarship assistance to citizens, and to those resident aliens who declare their intention to become citizens, of both the Nation and the State.
35
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
36
I am troubled by the somewhat mechanical application of the Court's equal protection jurisprudence to this case. I think one can accept the premise of Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); and Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), and therefore agree with the Court that classifications based on alienage are inherently suspect, but nonetheless feel that this case is wrongly decided. In those cases, the reason postulated for the elevation of alienage classifications to strict scrutiny was directly related to the express exclusion of aliens found in the State's classification. Here, however, we have a significantly different case. The State's classification trenches not at all upon the sole reason underlying the strict scrutiny afforded alienage classifications by this Court.
37
Graham v. Richardson is, of course, the starting point of analysis, as it was the first case to explicitly conclude that alienage classifications, like those based on race or nationality, would be subject to strict scrutiny when challenged under the Equal Protection Clause of the Fourteenth Amendment. Graham reasoned, 403 U.S., at 372, 91 S.Ct., at 1852:
38
"Aliens as a class are a prime example of a 'discrete and insular' minority (see United States v. Carolene Products Co., 304 U.S. 144, 152-153, n. 4, 58 S.Ct. 778, 783-784, 82 L.Ed. 1234 (1938)) for whom such heightened judicial solicitude is appropriate."
39
It is clear, therefore, that the reason alienage classifications receive heightened judicial scrutiny is because aliens, qua aliens, are a "discrete and insular" minority. See also Sugarman v. Dougall, supra, 413 U.S., at 642, 93 S.Ct., at 2847. Presumptively, such a minority group, like blacks or Orientals, is one identifiable by a status over which the members are powerless. Cf. Jimenez v. Weinberger, 417 U.S. 628, 631, 94 S.Ct. 2496, 2499, 41 L.Ed.2d 363 (1974). And it is no doubt true that all aliens are, at some time, members of a discrete and insular minority in that they are identified by a status which they are powerless to change until eligible to become citizens of this country. Since, as the Court notes, federal law generally requires five years' residence by aliens lawfully admitted for permanent residence as a prerequisite to the seeking of naturalization, 8 U.S.C. § 1427(a), aliens residing in this country necessarily are subject to a period of time during which they must bear this status of an "alien."1 If a classification, therefore, places aliens in one category, and citizens in another, then, thereafter, every entering resident alien must pass through a period of time in this country during which he falls into the one category and not the other. Nothing except time can remove him from his identified status as an "alien" and from whatever associated disabilities the statute might place on one occupying that status. In this sense, it is possible to view aliens as a discrete and insular minority, since they are categorized by a factor beyond their control.
40
The prior alienage cases from this Court, utilizing strict scrutiny to strike down state statutes, all dealt with statutes where the line drawn necessarily suffered that infirmity; in all of those cases, the line drawn necessarily left incoming resident aliens afflicted with the disability for some period of time. Nothing except the passage of time could remove the alien from the classification and the disability. The statutes, therefore, involved the precise infirmity which led this Court to accord aliens "suspect classification" treatment: The line drawn by the legislature was drawn on the basis of a status, albeit temporary, that the included members were powerless to change.2
41
While the majority seems to view Graham v. Richardson, as somehow different, ante, at 8-9, it is clear that the statute involved in that case suffered from the same weakness. By making aliens, but not citizens, await a durational residency requirement, aliens coming into the State were, because of their status, treated differently from citizens for a period of time, and during that period of time, the incoming aliens were powerless to remove themselves from that disability (unless they could become citizens). There was nothing else the alien could do to avoid the period of discriminatory treatment.
42
In all of these cases, then, the classification made by the State conformed to the reason underlying the strict scrutiny this Court applied. But it would seem to follow that if a state statute classifies in a way which necessarily avoids the underlying reason for the strict scrutiny, the statute should be viewed in a different light. This is such a case. Under this New York statute, a resident alien has, at all times, the power to remove himself from one classification and to place himself in the other, for, at all times, he may become entitled to benefits either by becoming a citizen or by declaring his intention to become a citizen as soon as possible.3 Here, unlike the other cases, the resident alien is not a member of a discrete and insular minority for purposes of the classification, even during the period that he must remain an alien, because he has at all times the means to remove himself immediately from the disfavored classification. There is no temporal disability since the resident alien may declare an intent, thereby at once removing himself from the disabled class, even if the intent cannot come to fruition for some period of time. Unlike the situation in Griffiths, Sugarman, and Graham, there exists no period of disability, defined by status, from which the alien cannot escape. The alien is not, therefore, for any period of time, forced into a position as a discrete and insular minority.4
43
Since the New York statute under challenge is this case does not create a discrete and insular minority by placing an inevitable disability based on status, the Court's heightened judicial scrutiny is unwarranted. The reason for the more rigorous constitutional test having ceased, the applicability of the test should likewise cease. Applying the rational-basis test, it is obvious that the statutory scheme in question should be sustained. The funds that New York wishes to spend on its higher education assistance programs are, of course, limited. New York's choice to distribute these limited funds to resident citizens and to resident aliens who intend to become citizens, while denying them to aliens who have no intention of becoming citizens, is a natural legislative judgment. By limiting the available pool of recipients to resident citizens and aliens who will become citizens, New York is able to give such recipients a larger payment from the same quantum of funds than would be the case were other aliens recipients as well. A State is entitled to decide, in distributing benefits, that resident citizens, whether or not they will remain residents of New York, are more likely to contribute to the future well-being of the State, either directly (by settling there) or indirectly (by living in some other State, but maintaining economic or social ties with New York or by improving the general well-being of the United States) than are aliens who are unwilling to renounce citizenship in a foreign country, and who may be thought more likely to return there. New York may also decide, in providing student loans pursuant to N.Y. Educ.Law §§ 680-684 (McKinney Supp.1976), that it will be easier to collect repayment sums from citizens than from aliens, should these loans be defaulted upon. These are permissible legislative judgments. Cf. McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961); Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977). When we deal, as we do here, with questions of economic legislation, our deference to the actions of a State is extremely great. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). New York's decision to deny educational monetary benefits to aliens who do not wish to become citizens of this country, while extending such benefits to citizens and other resident aliens, is rational, and should be sustained.
1
There also are other special competitive awards: Regents professional education in nursing scholarships, N. Y. Educ. Law §§ 605(2) and 671 (McKinney Supp.1976); Regents professional education in medicine or dentistry scholarships, §§ 605(3) and 672; Regents physician shortage scholarships, §§ 605(4) and 673; Regents war veteran scholarships, §§ 605(5) and 674; and Regents Cornell University scholarships, § 605(6).
2
The loan program is largely subsidized by the Federal Government. See 20 U.S.C. §§ 1071 to 1087-2 (1970 ed. and Supp. V) (In fiscal 1976 the federal expenditure for New York's loan program was $67,208,000 and the state contribution was $9,466,000. Brief for Appellants 8 n.* and 17 n.* ) Although it appears that federal administrators have not lodged objections to the State's practice of disqualifying certain resident aliens, see App. 82, the federal standards would make eligible for assistance an alien student who "is in the United States for other than a temporary purpose and intends to become a permanent resident thereof." 45 CFR § 177.2(a) (1976).
3
This requirement is not the subject of challenge here. See Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Starns v. Malkerson, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), aff'g, 326 F.Supp. 234 (Minn.1970).
4
Section 661(3) replaced former § 602(2) of the State's Education Law, in effect at the times appellees' complaints were filed. 1974 N.Y. Laws, c. 942. Clause (d) was added after the commencement of the suits. 1975 N.Y. Laws, c. 663, § 1. Since clause (d) serves to make a class of aliens eligible for aid without regard to citizenship or intent to apply for citizenship, its inclusion serves to undermine the State's arguments as to the purposes served by the first three clauses. See n. 13, infra.
5
In order to become a United States citizen, Mauclet would be required to renounce his French citizenship. 8 U.S.C. § 1448(a).
6
Other courts also have held that discrimination against resident aliens in the distribution of educational assistance is impermissible. See, e. g., Chapman v. Gerard, 456 F.2d 577 (CA3 1972); Jagnandan v. Giles, 379 F.Supp. 1178 (ND Miss.1974), appealed on damages and aff'd, 538 F.2d 1166 (CA5 1976), cert. pending, No. 76-832.
7
Appellants also argue that the District Court should not have reached the question of the applicability of § 661(3) to the loan program because appellee Rabinovitch, who alone challenged his aspect of the assistance program, had not been denied a loan. Hence, appellants assert, he lacks standing. Early in the litigation, however, Rabinovitch submitted an unrebutted affidavit to the effect that he believed that he "may require student loans to help cover the cost of" his education and that he was "barred from receiving a student loan simply because of (his) status as an alien." App. 71. Indeed, appellants conceded in the District Court that any application from Rabinovitch for a loan would be refused because of § 661(3). 406 F.Supp., at 1235. It is clear, therefore, that Art. III adverseness existed between the parties and that the dispute is a concrete one. The only obstacle to standing under the circumstances, would arise from prudential considerations. And we see no reason to postpone resolution of the dispute. Rabinovitch has been denied other forms of aid and little is to be served by requiring him now to go through the formality of submitting an application for a loan, in light of the certainty of its denial. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 562, 563, 50 L.Ed.2d 450 (1977). Until oral argument, appellants suggested no reason why the loan program should differ from the other forms of assistance. Tr. of Oral Arg. 7. In the absence of a more timely suggestion supporting a distinction among the forms of aid, we think that nothing is to be gained by adjudicating the validity of § 661(3) with regard to only two of the three primary assistance programs. After all, the single statutory proscription applies with equal force to all the programs.
8
In Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), the Court applied relaxed scrutiny in upholding the validity of a federal statute that conditioned an alien's eligibility for participation in a federal medical insurance program on the satisfaction of a durational residency requirement, but imposed no similar burden on citizens. The appellants can draw no solace from the case, however, because the Court was at pains to emphasize that Congress, as an aspect of its broad power over immigration and naturalization, enjoys rights to distinguish among aliens that are not shared by the States. Id., at 84-87, 96 S.Ct. at 1893-1895. See Hampton v. Mow Sun Wong, 426 U.S. 88, 100-101, 96 S.Ct. 1895, 1904, 48 L.Ed.2d 495 (1976); De Canas v. Bica, 424 U.S. 351, 358 n.6, 96 S.Ct. 933, 938, 47 L.Ed.2d 43 (1976).
It is perhaps worthy of note that the Medicare program under consideration in Diaz granted a permanent resident alien eligibility when he had resided in the United States for five years. Five years' residence is also the generally required period under federal law before an alien may seek to be naturalized. 8 U.S.C. § 1427(a). Yet, ironically, this is precisely the point at which, in New York, a resident must petition for naturalization or, irrespective of declared intent, lose his eligibility for higher education assistance.
9
Appellants also seem to assert that strict scrutiny should not be applied because aid to education does not deny an alien "access to the necessities of life." Brief for Appellants 21. They are joined in this view by THE CHIEF JUSTICE in dissent. Suffice it to say, the statutory statement of purpose for the aid programs reflects the State's contrary position:
"In a world of unmatched scientific progress and technological advance, as well as of unparalleled danger to human freedom, learning has never been more crucial to man's safety, progress and individual fulfillment. In the state and nation higher education no longer is a luxury; it is a necessity for strength, fulfillment and survival." 1961 N.Y. Laws, c. 389, § 1(a).
And, in any event, the Court noted in Graham v. Richardson, 403 U.S. 365, 376, 91 S.Ct. 1848, 1854, 29 L.Ed.2d 534 (1971), that classifications based on alienage "are inherently suspect and are therefore subject to strict scrutiny whether or not a fundamental right is impaired."
10
The District Court dealt abruptly with appellants' contention:
"This argument defies logic. Those aliens who apply, or agree to apply when eligible, for citizenship are relinquishing their alien status. Because some aliens agree under the statute's coercion to change their status does not alter the fact that the classification is based solely on alienage." 406 F.Supp., at 1235.
11
Our Brother REHNQUIST argues in dissent that strict scrutiny is inappropriate because under § 661(3) a resident alien can voluntarily withdraw from disfavored status. But this aspect of the statute hardly distinguishes our past decisions. By the logic of the dissenting opinion, the suspect class for alienage would be defined to include at most only those who have resided in this country for less than five years, since after that time, if not before, resident aliens are generally eligible to become citizens. 8 U.S.C. § 1427(a). The Court has never suggested, however, that the suspect class is to be defined so narrowly. In fact, the element of voluntariness in a resident alien's retention of alien status is a recognized element in several of the Court's decisions. For example the Court acknowledged that In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), involved an appellant who was eligible for citizenship, but who had not filed a declaration of intention to become a citizen, and had "no present intention of doing so." Id., at 718 n.1, 93 S.Ct., at 2853. And, insofar as the record revealed, nothing precluded the appellees in Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), from applying for citizenship. Id., at 650, 93 S.Ct., at 2861 (Rehnquist, J., dissenting). Mr. Justice REHNQUIST argued in dissent there, just as he does here today, that strict scrutiny was inappropriate in those cases because there was nothing to indicate that the aliens' status "cannot be changed by their affirmative acts." Id., at 657, 93 S.Ct., at 2865. Nonetheless, the Court applied strict scrutiny in the cases. We see no reason to depart from them now.
12
The footnote reads in part:
"That the statutory classifications challenged here discriminate among illegitimate children does not mean, of course, that they are not also properly described as discriminating between legitimate and illegitimate children."
13
In support of the justifications offered for § 661(3), appellants refer to a statement of purpose in legislation adopted in 1961 that substantially amended the State's aid programs. 1961 N.Y. Laws, c. 389, § 1. But the statement speaks only in general terms of encouraging education so as "to provide the broad range of leadership, inventive genius, and source of economic and cultural growth for oncoming generations," § 1(a), and of developing fully a "reservoir of talent and future leadership," § 1(c) purposes that would be served by extending aid to resident aliens as well as to citizens and hardly supports appellants in clear and unambiguous terms. Moreover, the statutory discrimination against aliens with regard to certain Regents scholarships dates from long before. 1920 N.Y. Laws, c. 502, § 1. And the very 1961 legislation on which appellants rely abolished the statutory disqualification of aliens in favor of an administrative rule. 1961 N.Y. Laws, c. 391, §§ 2 and 18. See also §§ 7, 14, and 19. In fact, it appears that the state administrators of the aid programs did not find the purposes in the 1961 legislation that appellants urge, since between 1961 and 1969, when the precursor of § 661(3) was adopted, resident aliens were allowed to receive tuition assistance awards. Brief for Appellants 15.
14
See also Perkins v. Smith, 370 F.Supp. 134 (Md.1974), summarily aff'd, 426 U.S. 913, 96 S.Ct. 2616, 49 L.Ed.2d 368 (1976).
15
Although the record does not reveal the number of aliens who are disqualified by § 661(3), there is a suggestion that the numbermay be exceedingly small. See Brief for Appellee Mauclet 9 n.4. Indeed, when asked about the cost of including aliens, appellants conceded at oral argument that "we may not be speaking about very much." Tr. of Oral Arg. 6. Thus, it appears that the inclusion of resident aliens in the assistance programs will have an insubstantial impact on the cost of the programs. And, in any event, the suggestion that the State can favor citizens over aliens in the distribution of benefits was largely rejected in Graham v. Richardson, supra.
*
The Court's reliance on the personal status of the appellant in In re Griffiths is misplaced. Our observation that Griffiths herself was eligible for citizenship but did not intend to apply, 413 U.S., at 718 n. 1, 93 S.Ct., at 2853, was hardly more than a factual "aside." The challenge in that case was to a Connecticut Rule of Court that flatly required an applicant for admission to the bar to be a citizen of the United States. Neither eligibility for naturalization nor intent to apply was relevant under the Connecticut scheme. There was no question that Griffiths had standing to challenge a classification against all aliens, just as Mauclet and Rabinovitch unquestionably have standing to challenge the classification before us today. Yet because the scheme in In re Griffiths "totally exclud(ed) aliens from the practice of law," id., at 719, 93 S.Ct., at 2853, we had no occasion in that case to consider whether a more narrowly tailored rule would be permissible. Had we done so, we would have confronted the additional question, not presented here, whether the exclusion improperly burdened the right to follow a chosen occupation. Cf. Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915).
1
Title 8 U.S.C. § 1427(a) allows application for naturalization upon the following conditions:
"No person, except as otherwise provided in this subchapter, shall be naturalized unless such petitioner, (1) immediately preceding the date of filing his petition for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State in which the petitioner filed the petition for at least six months, (2) has resided continuously within the United States from the date of the petition up to the time of admission to citizenship, and (3) during all the period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States."
Section 1430(a) establishes a three-year residency requirement for aliens whose spouse is a citizen of the United States. See also 8 U.S.C. § 1434. Sections 1430(b), (c), and (d) establish special categories where no prior residence in this country is required. They constitute de minimis exceptions, and may be properly ignored in considering alienage classifications.
2
In In re Griffiths, 413 U.S. 717, 718 n. 1, 93 S.Ct. 2851, 2853, 37 L.Ed.2d 910 (1973), the Court noted:
"(The plaintiff) is eligible for naturalization by reason of her marriage to a citizen of the United States and residence in the United States for more than three years, 8 U.S.C. § 1430(a). She has not filed a declaration of intention to become a citizen of the United States, 8 U.S.C. § 1445(f), and has no present intention of doing so."
The eligibility of plaintiff in that case, however, was not built into the classification scheme. The state-court rule prevented any alien from becoming an attorney, and of course reached those resident aliens who, having not satisfied the jurisdictional prerequisites to citizenship, could not change their disfavored status.
3
As the Court notes, the state statutory scheme is challengeable at all only by resident aliens. Ante, at 4. While other aliens are also disqualified by the state statute in question, they are also decisively disqualified by federal law from establishing a permanent residence in this country, see 8 U.S.C. § 1101(a)(15)(F)(i); 22 CFR § 41.45 (1976); cf. 45 CFR § 177.2(a) (1976). Since there is no question of the plenary power of the Federal Government in this area, see Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), the Court is quite properly concerned only with the category of resident aliens, those "lawfully admitted for permanent residence." 8 U.S.C. § 1101(a)(20). See generally In re Griffiths, supra, 413 U.S., at 719-722, 93 S.Ct., at 2853-2855; Graham v. Richardson, 403 U.S. 365, 371, 91 S.Ct. 1848, 1851, 29 L.Ed.2d 534 (1971).
4
The alien, of course, must "give up" (or announce that he intends to give up) his foreign citizenship. See 8 U.S.C. § 1448(a). In this sense, he must do something that members of the other category need not do in order to be eligible for the "favored" treatment. But, here, what is given up is the factor which distinguishes between the categories. I cannot view this as an impermissible burden which would convert this case into a case like Griffiths or Sugarman.
| 12
|
431 U.S. 816
97 S.Ct. 2094
53 L.Ed.2d 14
Henry SMITH, Individually and as Administrator of New York City Human Resources Administration, et al., Appellants,v.ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND REFORM et al. Bernard SHAPIRO, Individually and as Executive Director of the New York State Board of Social Welfare et al., Appellants, v. ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND REFORM et al. Naomi RODRIGUEZ et al., Appellants, v. ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND REFORM et al. Danielle GANDY et al., Appellants, v. ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND REFORM et al.
Nos. 76-180, 76-183, 76-5193 and 76-5200.
Argued March 21, 1977.
Decided June 13, 1977.
Syllabus
In this litigation appellees, individual foster parents and a foster parents organization, sought declaratory and injunctive relief against New York State and New York City officials, alleging that the statutory and regulatory procedures for removal of foster children from foster homes violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Under the New York Social Services Law the authorized placement agency has discretion to remove the child from the foster home, and regulations provide for 10 days' advance notice of removal. Objecting foster parents may request a conference with the Social Services Department where the foster parent may appear with counsel to be advised of the reasons for removal and to submit opposing reasons. Within five days after the conference the agency official must render a written decision and send notice to the foster parent and agency. If the child is removed after the conference the foster parent may appeal to the Department of Social Services, where a full adversary administrative hearing takes place, and the resultant determination is subject to judicial review. Removal is not stayed pending the hearing and judicial review. New York City provides additional procedures (SSC Procedure No. 5) to the foregoing statewide scheme, under which in lieu of or in addition to the conference the foster parents are entitled to a full trial-type preremoval hearing if the child is being transferred to another foster home. An additional statewide procedure is provided by N.Y.Soc.Serv. Law § 392 whereby a foster parent may obtain preremoval judicial review of an agency decision to remove a child who has been in foster care for 18 months or more. The District Court held that the State's preremoval procedures are constitutionally defective and that "before a foster child can be peremptorily transferred . . . to another foster home or to the natural parents . . . he is entitled to (an administrative) hearing at which all concerned parties may present any relevant information . . . ." Such a hearing would be held automatically, and before an officer free from contact with the removal decision who could order that the child remain with the foster parents. Appellees contended that when a child has lived in a foster home for a year or more a psychological tie is created between the child and the foster parents that constitutes the foster family the child's "psychological family," giving the family a "liberty interest" in its survival as a unit that is protected by the Fourteenth Amendment. The District Court, avoiding the "novel" question of whether the foster home is entitled to the same constitutional deference as the biological family, held that the foster child had an independent right to be heard before being condemned to suffer "grievous loss." Held :
1. The District Court erred in finding that the "grievous loss" to the foster child resulting from an improvident removal decision implicated the due process guarantee, as the determining factor is the nature of the interest involved rather than its weight. Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451; Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 2705-2706, 33 L.Ed.2d 548. Pp. 840-841.
2. The challenged procedures are constitutionally adequate even were it to be assumed that appellees have a protected "liberty interest" under the Fourteenth Amendment. The procedures employed by the State and New York City satisfy the standards for determining the sufficiency of procedural protections, taking into consideration the factors enumerated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Pp. 847-856.
418 F.Supp. 277, reversed.
Louise Gruner Gans, New York City, for appellants Rodriguez et al.
Helen L. Buttenwieser, New York City, for appellants Gandy et al.
Maria L. Marcus, New York City, for appellants Smith et al. and Shapiro et al.
Marcia Robinson Lowry, New York City, for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Appellees, individual foster parents1 and an organization of foster parents, brought this civil rights class action pursuant to 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York, on their own behalf and on behalf of children for whom they have provided homes for a year or more. They sought declaratory and injunctive relief against New York State and New York City officials,2 alleging that the procedures governing the removal of foster children from foster homes provided in N.Y.Soc.Serv. Law §§ 383(2) and 400 (McKinney 1976), and in 18 N.Y.C.R.R. § 450.14 (1974) violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.3 The District Court appointed independent counsel for the foster children to forestall any possibility of conflict between their interests and the interests asserted by the foster parents.4 A group of natural mothers of children in foster care5 were granted leave to intervene6 on behalf of themselves and others similarly situated.7
2
A divided three-judge District Court concluded that "the pre-removal procedures presently employed by the State are constitutionally defective," holding that "before a foster child can be peremptorily transferred from the foster home in which he has been living, be it to another foster home or to the natural parents who initially placed him in foster care, he is entitled to a hearing at which all concerned parties may present any relevant information to the administrative decisionmaker charged with determining the future placement of the child," Organization of Foster Families v. Dumpson, 418 F.Supp. 277, 282 (1976). Four appeals to this Court were taken from the ensuing judgment declaring the challenged statutes unconstitutional and permanently enjoining their enforcement. The New York City officials are appellants in No. 76-180. The New York State officials are appellants in No. 76-183. Independent counsel appointed for the foster children appeals on their behalf in No. 76-5200. The intervening natural mothers are appellants in No. 76-5193. We noted probable jurisdiction of the four appeals. 429 U.S. 883, 97 S.Ct. 232, 50 L.Ed.2d 164 (1976). We reverse.
3
* A detailed outline of the New York statutory system regulating foster care is a necessary preface to a discussion of the constitutional questions presented.
A.
4
The expressed central policy of the New York system is that "it is generally desirable for the child to remain with or be returned to the natural parent because the child's need for a normal family life will usually best be met in the natural home, and . . . parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered," Soc.Serv. Law § 384-b(1)(a)(ii) (McKinney Supp. 1976-1977). But the State has opted for foster care as one response to those situations where the natural parents are unable to provide the "positive, nurturing family relationships" and "normal family life in a permanent home" that offer "the best opportunity for children to develop and thrive." §§ 384-b(1)(b), (1)(a)(i).
5
Foster care has been defined as "(a) child welfare service which provides substitute family care for a planned period for a child when his own family cannot care for him for a temporary or extended period, and when adoption is neither desirable nor possible." Child Welfare League of America, Standards for Foster Family Care Service, 5 (1959).8 Thus, the distinctive features of foster care are, first, "that it is care in a family, it is noninstitutional substitute care," and, second, "that it is for a planned period either temporary or extended. This is unlike adoptive placement, which implies a permanent substitution of one home for another." Kadushin 355.
6
Under the New York scheme children may be placed in foster care either by voluntary placement or by court order. Most foster care placements are voluntary.9 They occur when physical or mental illness, economic problems, or other family crises make it impossible for natural parents, particularly single parents, to provide a stable home life for their children for some limited period.10 Resort to such placements is almost compelled when it is not possible in such circumstance to place the child with a relative or friend, or to pay for the services of a homemaker or boarding school.
7
Voluntary placement requires the signing of a written agreement by the natural parent or guardian, transferring the care and custody of the child to an authorized child welfare agency.11 N.Y.Soc.Serv. Law § 384-a(1) (McKinney Supp. 1976-1977). Although by statute the terms of such agreements are open to negotiation, § 384-a(2)(a), it is contended that agencies require execution of standardized forms. Brief for Appellants in No. 76-5193, p. 25 n. 17. See App. 63a-64a, 65a-67a. The agreement may provide for return of the child to the natural parent at a specified date or upon occurrence of a particular event, and if it does not, the child must be returned by the agency, in the absence of a court order, within 20 days of notice from the parent. § 384-a(2) (a).12
8
The agency may maintain the child in an institutional setting, §§ 374-b, 374-c, 374-d (McKinney 1976), but more commonly acts under its authority to "place out and board out" children in foster homes. § 374(1).13 Foster parents, who are licensed by the State or an authorized foster-care agency, §§ 376, 377, provide care under a contractual arrangement with the agency, and are compensated for their services. See 18 N.Y.C.R.R. §§ 606.2, 606.6 (1977); App. 76a, 81a. The typical contract expressly reserves the right of the agency to remove the child on request. 418 F.Supp., at 281; App. 76a, 79a. See N.Y.Soc.Serv. Law § 383(2) (McKinney 1976).14 Conversely, the foster parent may cancel the agreement at will.15
9
The New York system divides parental functions among agency, foster parents, and natural parents, and the definitions of the respective roles are often complex and often unclear.16 The law transfers "care and custody" to the agency, § 384-a; see also § 383(2), but day-to-day supervision of the child and his activities, and most of the functions ordinarily associated with legal custody, are the responsibility of the foster parent.17 Nevertheless, agency supervision of the performance of the foster parents takes forms indicating that the foster parent does not have the full authority of a legal custodian.18 Moreover, the natural parent's placement of the child with the agency does not surrender legal guardianship;19 the parent retains authority to act with respect to the child in certain circumstances.20 The natural parent has not only the right but the obligation to visit the foster child and plan for his future; failure of a parent with capacity to fulfill the obligation for more than a year can result in a court order terminating the parent's rights on the ground of neglect. §§ 384-b(4), (7). See also § 384-b(5); N.Y.Dom.Rel. Law § 111 (McKinney Supp. 1976-1977); N.Y. Family Court Act § 611 (McKinney Supp. 1976-1977).21
10
Children may also enter foster care by court order. The Family Court may order that a child be placed in the custody of an authorized child-care agency after a full adversary judicial hearing under Art. 10 of the New York Family Court Act, if it is found that the child has been abused or neglected by his natural parents. §§ 1052, 1055. In addition, a minor adjudicated a juvenile delinquent, or "person in need of supervision" may be placed by the court with an agency. §§ 753, 754, 756. The consequences of foster-care placement by court order do not differ substantially from those for children voluntarily placed, except that the parent is not entitled to return of the child on demand pursuant to Soc.Serv.Law § 384-a(2)(a); termination of foster care must then be consented to by the court. § 383(1).22
B
11
The provisions of the scheme specifically at issue in this litigation come into play when the agency having legal custody determines to remove the foster child from the foster home, either because it has determined that it would be in the child's best interests to transfer him to some other foster home, or to return the child to his natural parents in accordance with the statute or placement agreement. Most children are removed in order to be transferred to another foster home.23 The procedures by which foster parents may challenge a removal made for that purpose differ somewhat from those where the removal is made to return the child to his natural parent.
12
Section 383(2), n. 3, supra, provides that the "authorized agency placing out or boarding (a foster) child . . . may in its discretion remove such child from the home where placed or boarded." Administrative regulations implement this provision. The agency is required, except in emergencies, to notify the foster parents in writing 10 days in advance of any removal. 18 N.Y.C.R.R. § 450.10(a) (1976).24 The notice advises the foster parents that if they object to the child's removal they may request a "conference" with the Social Services Department. Ibid. The department schedules requested conferences within 10 days of the receipt of the request. § 450.10(b). The foster parent may appear with counsel at the conference, where he will "be advised of the reasons (for the removal of the child), and be afforded an opportunity to submit reasons why the child should not be removed." § 450.10(a).25 The official must render a decision in writing within five days after the close of the conference, and send notice of his decision to the foster parents and the agency. § 450.10(c). The proposed removal is stayed pending the outcome of the conference. § 450.10(d).
13
If the child is removed after the conference, the foster parent may appeal to the Department of Social Services for a "fair hearing," that is, a full adversary administrative hearing, under Soc.Serv.Law § 400,26 the determination of which is subject to judicial review under N.Y.Civ.Prac.Law § 7801 et seq. (McKinney 1963); Art. 78; however, the removal is not automatically stayed pending the hearing and judicial review.27
14
This statutory and regulatory scheme applies statewide.28 In addition, regulations promulgated by the New York City Human Resources Administration, Department of Social Services Special Services for Children (SSC) provide even greater procedural safeguards there. Under SSC Procedure No. 5 (Aug. 5, 1974), in place of or in addition to the conference provided by the state regulations, the foster parents may request a full trial-type hearing before the child is removed from their home. This procedure applies, however, only if the child is being transferred to another foster home, and not if the child is being returned to his natural parents.29
15
One further preremoval procedural safeguard is available. Under Soc.Serv.Law § 392, the Family Court has jurisdiction to review, on petition of the foster parent or the agency, the status of any child who has been in foster care for 18 months or longer.30 The foster parents, the natural parents, and all interested agencies are made parties to the proceeding. § 392(4). After hearing, the court may order that foster care be continued, or that the child be returned to his natural parents, or that the agency take steps to free the child for adoption.31 § 392(7). Moreover, § 392(8) authorizes the court to issue an "order of protection" which "may set forth reasonable conditions of behavior to be observed for a specified time by a person or agency who is before the court." Thus, the court may order not only that foster care be continued, but additionally, "in assistance or as a condition of" that order that the agency leave the child with the present foster parent.32 In other words, § 392 provides a mechanism whereby a foster parent may obtain preremoval judicial review of an agency's decision to remove a child who has been in foster care for 18 months or more.
C
16
Foster care of children is a sensitive and emotion-laden subject, and foster-care programs consequently stir strong controversy. The New York regulatory scheme is no exception. New York would have us view the scheme as described in its brief:
17
"Today New York premises its foster care system on the accepted principle that the placement of a child into foster care is solely a temporary, transitional action intended to lead to the future reunion of the child with his natural parent or parents, or if such a reunion is not possible, to legal adoption and the establishment of a new permanent home for the child." Brief for Appellants in No. 76-183, p. 3.
18
Some of the parties and amici argue that this is a misleadingly idealized picture. They contend that a very different perspective is revealed by the empirical criticism of the system presented in the record of this case and confirmed by published studies of foster care.
19
From the standpoint of natural parents, such as the appellant intervenors here, foster care has been condemned as a class-based intrusion into the family life of the poor. See, e.g., Jenkins, Child Welfare as a Class System, in Children and Decent People 3 (A. Schorr ed. 1974). And see generally tenBroek, California's Dual System of Family Law: Its Origins, Development and Present Status (pt. I), 16 Stan.L.Rev. 257 (1964); (pt. II), 16 Stan.L.Rev. 900 (1964); (pt. III), 17 Stan.L.Rev. 614 (1965). It is certainly true that the poor resort to foster care more often than other citizens. For example, over 50% of all children in foster care in New York City are from female-headed families receiving Aid to Families with Dependent Children. Foundation for Child Development, State of the Child: New York City 61 (1976). Minority families are also more likely to turn to foster care; 52.3% of the children in foster care in New York City are black and 25.5% are Puerto Rican. Child Welfare Information Services, Characteristics of Children in Foster Care, New York City Reports, Table No. 2 (Dec. 31, 1976).33 This disproportionate resort to foster care by the poor and victims of discrimination doubtless reflects in part the greater likelihood of disruption of poverty-stricken families. Commentators have also noted, however, that middle- and upper-income families who need temporary care services for their children have the resources to purchase private care. See, e.g., Rein, Nutt, & Weiss 24, 25. The poor have little choice but to submit to state-supervised child care when family crises strike. Id., at 34.
20
The extent to which supposedly "voluntary" placements are in fact voluntary has been questioned on other grounds as well. For example, it has been said that many "voluntary" placements are in fact coerced by threat of neglect proceedings34 and are not in fact voluntary in the sense of the product of an informed consent. Mnookin I 599, 601. Studies also suggest that social workers of middle-class backgrounds, perhaps unconsciously, incline to favor continued placement in foster care with a generally higher-status family rather than return the child to his natural family, thus reflecting a bias that treats the natural parents' poverty and lifestyle as prejudicial to the best interests of the child. Rein, Nutt, & Weiss 42-44; Levine, Caveat Parents: A Demystification of the Child Protection System, 35 U.Pitt.L.Rev. 1, 29 (1973). This accounts,35 it has been said, for the hostility of agencies to the efforts of natural parents to obtain the return of their children.36
21
Appellee foster parents as well as natural parents question the accuracy of the idealized picture portrayed by New York. They note that children often stay in "temporary" foster care for much longer than contemplated by the theory of the system. See, e.g., Kadushin 411-412; Mnookin I 610-613; Wald 662-663; Rein, Nutt, & Weiss 37-39.37 The District Court found as a fact that the median time spent in foster care in New York was over four years. 418 F.Supp., at 281. Indeed, many children apparently remain in this "limbo" indefinitely. Mnookin II 226, 273. The District Court also found that the longer a child remains in foster care, the more likely it is that he will never leave: "(T)he probability of a foster child being returned to his biological parents declined markedly after the first year in foster care." 418 F.Supp., at 279 n. 6. See also E. Sherman, R. Neuman, & A. Shyne, Children Adrift in Foster Care: A Study of Alternative Approaches 3 (1973); Fanshel, The Exit of Children from Foster Care: An Interim Research Report, 50 Child Welfare 65, 67 (1971). It is not surprising then that many children, particularly those that enter foster care at a very early age38 and have little or no contact with their natural parents during extended stays in foster care,39 often develop deep emotional ties with their foster parents.40
22
Yet such ties do not seem to be regarded as obstacles to transfer of the child from one foster placement to another. The record in this case indicates that nearly 60% of the children in foster care in New York City have experienced more than one placement, and about 28% have experienced three or more. App. 189a. See also Wald 645-646; Mnookin I 625-626. The intended stability of the foster-home management is further damaged by the rapid turnover among social work professionals who supervise the foster-care arrangements on behalf of the State. Id., at 625; Rein, Nutt, & Weiss 41; Kadushin 420. Moreover, even when it is clear that a foster child will not be returned to his natural parents, it is rare that he achieves a stable home life through final termination of parental ties and adoption into a new permanent family. Fanshel, Status Changes of Children in Foster Care: Final Results of the Columbia University Longitudinal Study, 55 Child Welfare 143, 145, 157 (1976); Mnookin II 275-277; Mnookin I 612-613. See also n. 23, supra.
23
The parties and amici devote much of their discussion to these criticisms of foster care, and we present this summary in the view that some understanding of those criticisms is necessary for a full appreciation of the complex and controversial system with which this lawsuit is concerned.41 But the issue presented by the case is a narrow one. Arguments asserting the need for reform of New York's statutory scheme are properly addressed to the New York Legislature. The relief sought in this case is entirely procedural. Our task is only to determine whether the District Court correctly held that the present procedures preceding the removal from a foster home of children resident there a year or more are constitutionally inadequate. To that task we now turn.
II
A.
24
Our first inquiry is whether appellees have asserted interests within the Fourteenth Amendment's protection of "liberty" and "property." Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972).
25
The appellees have not renewed in this Court their contention, rejected by the District Court, 418 F.Supp., at 280-281, that the realities of the foster-care system in New York gave them a justified expectation amounting to a "property" interest that their status as foster parents would be continued.42 Our inquiry is therefore narrowed to the question whether their asserted interests are within the "liberty" protected by the Fourteenth Amendment.
26
The appellees' basic contention is that when a child has lived in a foster home for a year or more, a psychological tie is created between the child and the foster parents which constitutes the foster family the true "psychological family" of the child. See J. Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the Child (1973). That family, they argue, has a "liberty interest" in its survival as a family protected by the Fourteenth Amendment. Cf. Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531. Upon this premise they conclude that the foster child cannot be removed without a prior hearing satisfying due process. Appointed counsel for the children, appellants in No. 76-5200, however, disagrees, and has consistently argued that the foster parents have no such liberty interest independent of the interests of the foster children, and that the best interests of the children would not be served by procedural protections beyond those already provided by New York law. The intervening natural parents of children in foster care, appellants in No. 76-5193, also oppose the foster parents, arguing that recognition of the procedural right claimed would undercut both the substantive family law of New York, which favors the return of children to their natural parents as expeditiously as possible, see supra, at 823, and their constitutionally protected right of family privacy, by forcing them to submit to a hearing and defend their rights to their children before the children could be returned to them.
27
The District Court did not reach appellees' contention "that the foster home is entitled to the same constitutional deference as that long granted to the more traditional biological family." 418 F.Supp., at 281. Rather than "reach(ing) out to decide such novel questions," the court based its holding that "the pre-removal procedures presently employed by the state are constitutionally defective," id., at 282, not on the recognized liberty interest in family privacy, but on an independent right of the foster child "to be heard before being 'condemned to suffer grievous loss,' Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)." Ibid.
28
The court apparently reached this conclusion by weighing the "harmful consequences of a precipitous and perhaps improvident decision to remove a child from his foster family," id., at 283, and concluding that this disruption of the stable relationships needed by the child might constitute "grievous loss." But if this was the reasoning applied by the District Court, it must be rejected.43 Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976), is authority that such a finding does not, in and of itself, implicate the due process guarantee. What was said in Board of Regents v. Roth, supra, 408 U.S., at 570-571, 92 S.Ct., at 2705 applies equally well here:
29
"The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular interests involved. . . . (A) weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process. But, 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. . . . We must look to see if the interest is within the Fourteenth Amendment's protection of liberty and property."44
30
We therefore turn to appellees' assertion that they have a constitutionally protected liberty interest in the words of the District Court, a "right to familial privacy," 418 F.Supp., at 279 in the integrity of their family unit.45 This assertion clearly presents difficulties.
B
31
It is, of course, true that "freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974). There does exist a "private realm of family life which the state cannot enter," Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), that has been afforded both substantive46 and procedural47 protection. But is the relation of foster parent to foster child sufficiently akin to the concept of "family" recognized in our precedents to merit similar protection?48 Although considerable difficulty has attended the task of defining "family" for purposes of the Due Process Clause, see Moore v. City of East Cleveland, supra, 431 U.S., pp. 495, 97 S.Ct., p. 1934 (plurality opinion of Powell, J.); 531, 97 S.Ct., p. 1952 (Stewart, J., dissenting); 541, 97 S.Ct., p. 1957 (White, J., dissenting), we are not without guides to some of the elements that define the concept of "family" and contribute to its place in our society.
32
First, the usual understanding of "family" implies biological relationships, and most decisions treating the relation between parent and child have stressed this element. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972), for example, spoke of "(t)he rights to conceive and to raise one's children" as essential rights, citing Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and Skinner v. Oklahoma, ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). And Prince v. Massachusetts, stated:
33
"It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." 321 U.S., at 166, 64 S.Ct., at 442.49
34
A biological relationship is not present in the case of the usual foster family. But biological relationships are not exclusive determination of the existence of a family.50 The basic foundation of the family in our society, the marriage relationship, is of course not a matter of blood relation. Yet its importance has been strongly emphasized in our cases:
35
"We deal with a right of privacy older than the Bill of Rights older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965).
36
See also Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967).
37
Thus the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in "promot(ing) a way of life" through the instruction of children, Wisconsin v. Yoder, 406 U.S. 205, 231-233, 92 S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15 (1972), as well as from the fact of blood relationship. No one would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of blood relationship.51 At least where a child has been placed in foster care as an infant, has never known his natural parents, and has remained continuously for several years in the care of the same foster parents, it is natural that the foster family should hold the same place in the emotional life of the foster child, and fulfill the same socializing functions, as a natural family.52 For this reason, we cannot dismiss the foster family as a mere collection of unrelated individuals. Cf. Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974).
38
But there are also important distinctions between the foster family and the natural family. First, unlike the earlier cases recognizing a right to family privacy, the State here seeks to interfere, not with a relationship having its origins entirely apart from the power of the State, but rather with a foster family which has its source in state law and contractual arrangements. The individual's freedom to marry and reproduce is "older than the Bill of Rights," Griswold v. Connecticut, supra, 381 U.S., at 486, 85 S.Ct., at 1682. Accordingly, unlike the property interests that are also protected by the Fourteenth Amendment cf. Board of Regents v. Roth, 408 U.S., at 577, 92 S.Ct., at 2709, the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law,53 but in intrinsic human rights, as they have been understood in "this Nation's history and tradition." Moore v. City of East Cleveland, 431 U.S., at 503, 97 S.Ct., at 1938. Cf. also Meachum v. Fano, 427 U.S., at 230, 96 S.Ct., at 2540 (Stevens, J., dissenting). Here, however, whatever emotional ties may develop between foster parent and foster child have their origins in an arrangement in which the State has been a partner from the outset. While the Court has recognized that liberty interests may in some cases arise from positive-law sources, see, e. g., Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974), in such a case, and particularly where, as here, the claimed interest derives from a knowingly assumed contractual relation with the State, it is appropriate to ascertain from state law the expectations and entitlements of the parties. In this case, the limited recognition accorded to the foster family by the New York statutes and the contracts executed by the foster parents argue against any but the most limited constitutional "liberty" in the foster family.
39
A second consideration related to this is that ordinarily procedural protection may be afforded to a liberty interest of one person without derogating from the substantive liberty of another. Here, however, such a tension is virtually unavoidable. Under New York law, the natural parent of a foster child in voluntary placement has an absolute right to the return of his child in the absence of a court order obtainable only upon compliance with rigorous substantive and procedural standards, which reflect the constitutional protection accorded the natural family. See nn.46, 47, supra. Moreover, the natural parent initially gave up his child to the State only on the express understanding that the child would be returned in those circumstances. These rights are difficult to reconcile with the liberty interest in the foster family relationship claimed by appellees. It is one thing to say that individuals may acquire a liberty interest against arbitrary governmental interference in the family-like associations into which they have freely entered, even in the absence of biological connection or state-law recognition of the relationship. It is quite another to say that one may acquire such an interest in the face of another's constitutionally recognized liberty interest that derives from blood relationship, state-law sanction, and basic human right an interest the foster parent has recognized by contract from the outset.54 Whatever liberty interest might otherwise exist in the foster family as an institution, that interest must be substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents.
40
As this discussion suggests, appellees' claim to a constitutionally protected liberty interest raises complex and novel questions. It is unnecessary for us to resolve those questions definitively in this case, however, for like the District Court, we conclude that "narrower grounds exist to support" our reversal. We are persuaded that, even on the assumption that appellees have a protected "liberty interest," the District Court erred in holding that the preremoval procedures presently employed by the State are constitutionally defective.
III
41
Where procedural due process must be afforded because a "liberty" or "property" interest is within the Fourteenth Amendment's protection, there must be determined "what process is due" in the particular context. The District Court did not spell out precisely what sort of preremoval hearing would be necessary to meet the constitutional standard, leaving to "the various defendants state and local officials the first opportunity to formulate procedures suitable to their own professional needs and compatible with the principles set forth in this opinion." 418 F.Supp., at 286. The court's opinion, however, would seem to require at a minimum that in all cases in which removal of a child within the certified class is contemplated, including the situation where the removal is for the purpose of returning the child to his natural parents, a hearing be held automatically, regardless of whether or not the foster parents request a hearing;55 that the hearing be before an officer who has had no previous contact with the decision to remove the child, and who has authority to order that the child remain with the foster parents; and that the agency, the foster parents, and the natural parents, as well as the child, if he is able intelligently to express his true feelings, and an independent representative of the child's interests, if he is not, be represented and permitted to introduce relevant evidence.
42
It is true that "(b)efore a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, 'except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.' " Board of Regents v. Roth, 408 U.S., at 570 n.7, 92 S.Ct., at 2705; quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). But the hearing required is only one "appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). See, e. g., Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970); Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). "(D)ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Only last Term, the Court held that "identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's 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). Consideration of the procedures employed by the State and New York City in light of these three factors requires the conclusion that those procedures satisfy constitutional standards.
43
Turning first to the procedure applicable in New York City, SSC Procedure No. 5, see supra, at 831, and n.29, provides that before a child is removed from a foster home for transfer to another foster home, the foster parents may request an "independent review." The District Court's description of this review is set out in the margin.56 Such a procedure would appear to give a more elaborate trial-type hearing to foster families than this Court has found required in other contexts of administrative determinations. Cf. Goldberg v. Kelly, supra, 397 U.S., at 266-271, 90 S.Ct., at 1019-1022. The District Court found the procedure inadequate on four grounds, none of which we find sufficient to justify the holding that the procedure violates due process.
44
First, the court held that the "independent review" administrative proceeding was insufficient because it was only available on the request of the foster parents. In the view of the District Court, the proceeding should be provided as a matter of course, because the interests of the foster parents and those of the child would not necessarily be coextensive, and it could not be assumed that the foster parents would invoke the hearing procedure in every case in which it was in the child's interest to have a hearing. Since the child is unable to request a hearing on his own, automatic review in every case is necessary. We disagree. As previously noted, the constitutional liberty, if any, sought to be protected by the New York procedures is a right of family privacy or autonomy, and the basis for recognition of any such interest in the foster family must be that close emotional ties analogous to those between parent and child are established when a child resides for a lengthy period with a foster family. If this is so, necessarily we should expect that the foster parents will seek to continue the relationship to preserve the stability of the family; if they do not request a hearing, it is difficult to see what right or interest of the foster child is protected by holding a hearing to determine whether removal would unduly impair his emotional attachments to a foster parent who does not care enough about the child to contest the removal.57 Thus, consideration of the interest to be protected and the likelihood of erroneous deprivations,58 the first two factors identified in Mathews v. Eldridge, supra, as appropriate in determining the sufficiency of procedural protections, do not support the District Court's imposition of this additional requirement. Moreover, automatic provision of hearings as required by the District Court would impose a substantial additional administrative burden on the State. According to appellant city officials, during the approximately two years between the institution of SSC Procedure No. 5 in August 1974 and June 1976, there were approximately 2,800 transfers per year in the city, but only 26 foster parents requested hearings. Brief for Appellants in No. 76-180, pp. 20-21. It is not at all clear what would be gained by requiring full hearings in the more than 5,500 cases in which they were not requested.
45
Second, the District Court faulted the city procedure on the ground that participation is limited to the foster parents and the agency and the natural parent and the child are not made parties to the hearing. This is not fatal in light of the nature of the alleged constitutional interests at stake. When the child's transfer from one foster home to another is pending, the interest arguably requiring protection is that of the foster family, not that of the natural parents. Moreover, the natural parent can generally add little to the accuracy of factfinding concerning the wisdom of such a transfer, since the foster parents and the agency, through its caseworkers, will usually be most knowledgeable about conditions in the foster home. Of course, in those cases where the natural parent does have a special interest in the proposed transfer or particular information that would assist the factfinder, nothing in the city's procedure prevents any party from securing his testimony.
46
Much the same can be said in response to the District Court's statement:
47
"(I)t may be advisable, under certain circumstances, for the agency to appoint an adult representative better to articulate the interests of the child. In making this determination, the agency should carefully consider the child's age, sophistication and ability effectively to communicate his own true feelings." 418 F.Supp., at 285-286.
48
But nothing in the New York City procedure prevents consultation of the child's wishes, directly or through an adult intermediary. We assume, moreover, that some such consultation would be among the first steps that a rational factfinder, inquiring into the child's best interests, would pursue. Such consultation, however, does not require that the child or an appointed representative must be a party with full adversary powers in all preremoval hearings.59
49
The other two defects in the city procedure found by the District Court must also be rejected. One is that the procedure does not extend to the removal of a child from foster care to be returned to his natural parent. But as we have already held, whatever liberty interest may be argued to exist in the foster family is significantly weaker in the case of removals preceding return to the natural parent, and the balance of due process interests must accordingly be different. If the city procedure is adequate where it is applicable, it is no criticism of the procedure that it does not apply in other situations where different interests are at stake. Similarly, the District Court pointed out that the New York City procedure coincided with the informal "conference" and postremoval hearings provided as a matter of state law. This overlap in procedures may be unnecessary or even to some degree unwise, see id., F.Supp., at 285, but a State does not violate the Due Process Clause by providing alternative or additional procedures beyond what the Constitution requires.
50
Outside New York City, where only the statewide procedures apply, foster parents are provided not only with the procedures of a preremoval conference and postremoval hearing provided by 18 N.Y.C.R.R. § 450.10 (1976) and Soc.Serv.Law § 400 (McKinney 1976), see supra, at 12-13, but also with the preremoval judicial hearing available on request to foster parents who have in their care children who have been in foster care for 18 months or more, Soc.Serv.Law § 392. As observed supra, at 832, and n.32, a foster parent in such case may obtain an order that the child remain in his care.
51
The District Court found three defects in this full judicial process. First, a § 392 proceeding is available only to those foster children who have been in foster care for 18 months or more. The class certified by the court was broader, including children who had been in the care of the same foster parents for more than one year. Thus, not all class members had access to the § 392 remedy.60 We do not think that the 18-month limitation on § 392 actions renders the New York scheme constitutionally inadequate. The assumed liberty interest to be protected in this case is one rooted in the emotional attachments that develop over time between a child and the adults who care for him. But there is no reason to assume that those attachments ripen at less than 18 months or indeed at any precise point. Indeed, testimony in the record, see App. 177a, 204a, as well as material in published psychological tests, see, e. g., J. Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the Child 40-42, 49 (1973), suggests that the amount of time necessary for the development of the sort of tie appellees seek to protect varies considerably depending on the age and previous attachments of the child. In a matter of such imprecision and delicacy, we see no justification for the District Court's substitution of its view of the appropriate cutoff date for that chosen by the New York Legislature, given that any line is likely to be somewhat arbitrary and fail to protect some families where relationships have developed quickly while protecting others where no such bonds have formed. If New York sees 18 months rather than 12 as the time at which temporary foster care begins to turn into a more permanent and family-like setting requiring procedural protection and/or judicial inquiry into the propriety of continuing foster care, it would take far more than this record provides to justify a finding of constitutional infirmity in New York's choice.
52
The District Court's other two findings of infirmity in the § 392 procedure have already been considered and held to be without merit. The District Court disputed defendants' reading of § 392 as permitting an order requiring the leaving of the foster child in the same foster home. The plain words of the statute and the weight of New York judicial interpretation do not support the court. See supra, at 832, and n.32. The District Court also faulted § 392, as it did the New York City procedure, in not providing an automatic hearing in every case even in cases where foster parents chose not to seek one. Our holding sustaining the adequacy of the city procedure, supra, at 850-851, applies in this context as well.61
53
Finally, the § 392 hearing is available to foster parents, both in and outside New York City, even where the removal sought is for the purpose of returning the child to his natural parents. Since this remedy provides a sufficient constitutional preremoval hearing to protect whatever liberty interest might exist in the continued existence of the foster family when the State seeks to transfer the child to another foster home, a fortiori the procedure is adequate to protect the lesser interest of the foster family in remaining together at the expense of the disruption of the natural family.
54
We deal here with issues of unusual delicacy, in an area where professional judgments regarding desirable procedures are constantly and rapidly changing. In such a context, restraint is appropriate on the part of courts called upon to adjudicate whether a particular procedural scheme is adequate under the Constitution. Since we hold that the procedures provided by New York State in § 392 and by New York City's SSC Procedure No. 5 are adequate to protect whatever liberty interest appellees may have, the judgment of the District Court is
55
Reversed.
56
Mr. Justice STEWART, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring in the judgment.
57
The foster parent-foster child relationship involved in this litigation is, of course, wholly a creation of the State. New York law defines the circumstances under which a child may be placed in foster care, prescribes the obligations of the foster parents, and provides for the removal of the child from the foster home "in (the) discretion" of the agency with custody of the child. N.Y.Soc.Serv.Law § 383(2) (McKinney 1976). The agency compensates the foster parents, and reserves in its contracts the authority to decide as it sees fit whether and when a child shall be returned to his natural family or placed elsewhere. See Part I-A of the Court's opinion, ante, at 823-828. Were it not for the system of foster care that the State maintains, the relationship for which constitutional protection is asserted would not even exist.
58
The New York Legislature and the New York courts have made it unmistakably clear that foster care is intended only as a temporary way station until a child can be returned to his natural parents or placed for adoption. Thus, Soc.Serv.Law § 384-b(1)(b) (McKinney Supp. 1976-1977) states a legislative finding that "many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens." And, specifically repudiating the contention that New York law contemplates that a child will have a "secure, stable and continuous" relationship with a third-party custodian as the child's "psychological parent," the New York Court of Appeals has "(p)articularly rejected the notion, if that it be, that third-party custodians may acquire some sort of squatter's rights in another's child." Bennett v. Jeffreys, 40 N.Y.2d 543, 552 n. 2, 387 N.Y.S.2d 821, 829 n. 2, 356 N.E.2d 277, 285 n. 2.
59
In these circumstances, I cannot understand why the Court thinks itself obliged to decide these cases on the assumption that either foster parents or foster children in New York have some sort of "liberty" interest in the continuation of their relationship.1 Rather than tiptoeing around this central issue, I would squarely hold that the interests asserted by the appellees are not of a kind that the Due Process Clause of the Fourteenth Amendment protects.
60
At the outset, I would reject, as does the Court, the apparent holding of the District Court that "the trauma of separation from a familiar environment" or the "harmful consequences of a precipitous and perhaps improvident decision to remove a child from his foster family," Organization of Foster Families v. Dumpson, 418 F.Supp. 277, 283, constitutes a "grievous loss" which therefore is protected by the Fourteenth Amendment. Not every loss, however "grievous," invokes the protection of the Due Process Clause. Its protections extend only to a deprivation by a State of "life, liberty, or property." And when a state law does operate to deprive a person of his liberty or property, the Due Process Clause is applicable even though the deprivation may not be "grievous." Goss v. Lopez, 419 U.S. 565, 576, 95 S.Ct. 729, 737, 42 L.Ed.2d 725. "(T)o determine whether due process requirements apply in the first place, we look not to the 'weight' but to the nature of the interest at stake." Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548. See Ingraham v. Wright, 430 U.S. 651, 672, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711; Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451; Goss v. Lopez, supra, 419 U.S., at 575-576, 95 S.Ct., at 736-737.
61
Clearly, New York has deprived nobody of his life in these cases. It seems to me just as clear that the State has deprived nobody of his liberty or property. Putting to one side the District Court's erroneous "grievous loss" analysis, the appellees are left with very little ground on which to stand. Their argument seems to be that New York, by providing foster children with the opportunity to live in a foster home and to form a close relationship with foster parents, has created "liberty" or "property" that it may not withdraw without complying with the procedural safeguards that the Due Process Clause confers. But this Court's decision in Meachum v. Fano, supra, illustrates the fallacy of that argument.
62
At issue in Meachum was a claim by Massachusetts state prisoners that they could not constitutionally be transferred to another institution with less favorable living conditions without a prior hearing that would fully probe the reasons for their transfer. In accord with previous cases, see, e. g., Goss v. Lopez, supra; Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935; Board of Regents v. Roth, supra; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, the Court recognized that where state law confers a liberty or property interest, the Due Process Clause requires certain minimum procedures " 'to ensure that the state-created right is not arbitrarily abrogated.' " 427 U.S., at 226, 96 S.Ct., at 2539, quoting Wolff, supra, 418 U.S., at 557, 94 S.Ct., at 2975. But the predicate for invoking the Due Process Clause the existence of state-created liberty or property was missing in Meachum just as it is missing here. New York confers no right on foster families to remain intact, defeasible only upon proof of specific acts or circumstances. As was true of prison transfers in Meachum, transfers in and out of foster families "are made for a variety of reasons and often involve no more than informed predictions as to what would best serve . . . the safety and welfare of the (child)." 427 U.S., at 225, 96 S.Ct., at 2540.
63
Similarly, New York law provides no basis for a justifiable expectation on the part of foster families that their relationship will continue indefinitely. Cf. Perry v. Sindermann, supra, 408 U.S., at 599-603, 92 S.Ct., at 2698-2700. The District Court in this litigation recognized as much, noting that the typical foster-care contract gives the agency the right to recall the child "upon request," and commenting that the discretionary authority vested in the agency "is on its face incompatible with plaintiffs' claim of legal entitlement." 418 F.Supp., at 281. To be sure, the New York system has not operated perfectly. As the state legislature found, foster care has in many cases been unnecessarily protracted, no doubt sometimes resulting in the expectation on the part of some foster families that their relationship will continue indefinitely. But, as already noted, the New York Court of Appeals has unequivocally rejected the notion that under New York law prolonged third-party custody of children creates some sort of "squatter's rights." And, as this Court stated in Perry v. Sindermann, supra, 408 U.S., at 603, 92 S.Ct., at 2700, a mere subjective "expectancy" is not liberty or property protected by the Due Process Clause.
64
This is not to say that under the law of New York foster children are the pawns of the State, who may be whisked from family to family at the whim of state officials. The Court discusses in Part III of its opinion the various state and local procedures intended to assure that agency discretion is exercised in a manner consistent with the child's best interests. Unlike the prison transfer situation in Meachum v. Fano, it does not appear that child custody decisions can be made "for whatever reason or for no reason at all." 427 U.S., at 228, 96 S.Ct., at 2540. But the protection that foster children have is simply the requirement of state law that decisions about their placement be determined in the light of their best interests. See, e. g., Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277; In re Jewish Child Care Assn. (Sanders), 5 N.Y.2d 222, 183 N.Y.S.2d 65, 156 N.E.2d 700; State ex rel. Wallace v. Lhotan, 51 A.D.2d 252, 380 N.Y.S.2d 250 (2d Dept.), appeal dismissed and leave to appeal denied, 39 N.Y.2d 705, 384 N.Y.S.2d 1027, 349 N.E.2d 882. This requirement is not "liberty or property" protected by the Due Process Clause, and it confers no right or expectancy of any kind in the continuity of the relationship between foster parents and children. See e. g., Bennett, supra, 40 N.Y.2d, at 552 n. 2, 387 N.Y.S.2d, at 829 n. 2, 356 N.E.2d, at 285 n. 2: "Third-party custodians acquire 'rights' . . . only derivatively by virtue of the child's best interests being considered . . . ."
65
What remains of the appellees' argument is the theory that the relation of the foster parent to the foster child may generate emotional attachments similar to those found in natural families. The Court surmises that foster families who share these attachments might enjoy the same constitutional interest in "family privacy" as natural families. See, e. g., Moore v. City of East Cleveland, 431 U.S., at 504-505, 97 S.Ct., at 1938-1939 (plurality opinion of Powell, J.); Roe v. Wade, 410 U.S. 113, 152-153, 93 S.Ct. 705, 726-727, 35 L.Ed.2d 147; 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.
66
On this score, the Court hypothesizes the case of "a child (who) has been placed in foster care as an infant, has never known his natural parents, and has remained continuously for several years in the care of the same foster parents. . . ." Ante, at 844. The foster family might then "hold the same place in the emotional life of the foster child, and fulfill the same socializing functions, as a natural family." Ibid.
67
But under New York's foster-care laws, any case where the foster parents had assumed the emotional role of the child's natural parents would represent not a triumph of the system, to be constitutionally safeguarded from state intrusion, but a failure. The goal of foster care, at least in New York, is not to provide a permanent substitute for the natural or adoptive home, but to prepare the child for his return to his real parents or placement in a permanent adoptive home by giving him temporary shelter in a family setting. See Part I-A of the Court's opinion, ante, at 823-828. Thus, the New York Court of Appeals has recognized that the development of close emotional ties between foster parents and a child may hinder the child's ultimate adjustment in a permanent home, and provide a basis for the termination of the foster family relationship. In re Jewish Child Care Assn. (Sanders), supra.2 See also State ex rel. Wallace v. Lhotan, supra. Perhaps it is to be expected that children who spend unduly long stays in what should have been temporary foster care will develop strong emotional ties with their foster parents. But this does not mean, and I cannot believe, that such breakdowns of the New York system must be protected or forever frozen in their existence by the Due Process Clause of the Fourteenth Amendment.3
68
One of the liberties protected by the Due Process Clause, the Court has held, is the freedom to "establish a home and bring up children." Meyer v. Nebraska, supra, 262 U.S., at 399, 43 S.Ct., at 626. If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest, I should have little doubt that the State would have intruded impermissibly on "the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645. But this constitutional concept is simply not in point when we deal with foster families as New York law has defined them. The family life upon which the State "intrudes" is simply a temporary status which the State itself has created. It is a "family life" defined and controlled by the law of New York, for which New York pays, and the goals of which New York is entitled to and does set for itself.
69
For these reasons I concur in the judgment of the Court.
1
Appellee Madeleine Smith is the foster parent with whom Eric and Danielle Gandy have been placed since 1970. The Gandy children, who are now 12 and 9 years old respectively, were voluntarily placed in foster care by their natural mother in 1968, and have had no contact with her at least since being placed with Mrs. Smith. The foster-care agency has sought to remove the children from Mrs. Smith's care because her arthritis, in the agency's judgment makes it difficult for her to continue to pro-
vide adequate care. A foster-care review proceeding under N.Y.Soc.Serv. Law § 392 (McKinney 1976), see infra, at 831-832, resulted in an order, subsequent to the decision of the District Court, directing that foster care be continued and apparently contemplating, though not specifically ordering, that the children will remain in Mrs. Smith's care. In re Gandy, Nos. K-2663/74S, K-2664/74S (Fam.Ct.N.Y.Cty., Nov. 22, 1976).
Appellees Ralph and Christiane Goldberg were the foster parents of Rafael Serrano, now 14. His parents placed him in foster care voluntarily in 1969 after an abuse complaint was filed against them. It is alleged that the agency supervising the placement had informally indicated to Mr. and Mrs. Goldberg that it intended to transfer Rafael to the home of his aunt in contemplation of permanent placement. This effort has apparently failed. A petition for foster-care review under Soc.Serv. Law § 392 filed by the agency alleges that the Goldbergs are now separated, Mrs. Goldberg having moved out of the house, taking her own child but leaving Rafael. The child is now in a residential treatment center, where Mr. Goldberg continues to visit him. App. to Reply Brief for Appellants in No. 76-180.
Appellees Walter and Dorothy Lhotan were foster parents of the four Wallace sisters, who were voluntarily placed in foster care by their mother in 1970. The two older girls were placed with the Lhotans in that year, their two younger sisters in 1972. In June 1974, the Lhotans were informed that the agency had decided to return the two younger girls to their mother and transfer the two older girls to another foster home. The agency apparently felt that the Lhotans were too emotionally involved with the girls and were damaging the agency's efforts to prepare them to return to their mother. The state courts have ordered that all the Wallace children be returned to their mother, State ex rel. Wallace v. Lhotan, 51 A.D.2d 252, 380 N.Y.S.2d 250, appeal dismissed and leave to appeal denied, 39 N.Y.2d 705, 384 N.Y.S.2d 1027, 349 N.E.2d 882 (1976). We are told that the children have been returned and are adjusting successfully. Reply Brief for Appellants in No. 76-5200, pp. 1a-10a.
2
Defendants in the District Court included various New York State and New York City child welfare officials, and officials of a voluntary child-care agency and the Nassau County Department of Social Services. The latter two defendants have not appealed.
3
New York Soc.Serv. Law § 383(2) (McKinney 1976) provides:
"The custody of a child placed out or boarded out and not legally adopted or for whom legal guardianship has not been granted shall be vested during his minority, or until discharged by such authorized agency from its care and supervision, in the authorized agency placing out or boarding out such child and any such authorized agency may in its discretion remove such child from the home where placed or boarded."
New York Soc.Serv. Law § 400 (McKinney 1976) provides:
"Removal of children
"1. When any child shall have been placed in an institution or in a family home by a commissioner of public welfare or a city public welfare officer, the commissioner or city public welfare officer may remove such child from such institution or family home and make such disposition of such child as is provided by law.
"2. Any person aggrieved by such decision of the commissioner of public welfare or city welfare officer may appeal to the department, which upon receipt of the appeal shall review the case, shall give the person making the appeal an opportunity for a fair hearing thereon and within thirty days render its decision. The department may also, on its own motions, review any such decision made by the public welfare official. The department may make such additional investigation as it may deem necessary. All decisions of the department shall be binding upon the public welfare district involved and shall be complied with by the public welfare officials thereof."
Title 18 N.Y.C.R.R. § 450.14, which was renumbered § 450.10 as of September 18, 1974, provides:
"Removal from foster family care. (a) Whenever a social services official of another authorized agency acting on his behalf proposes to remove a child in foster family care from the foster family home, he or such other authorized agency, as may be appropriate, shall notify the foster family parents, in writing of the intention to remove such child at least 10 days prior to the proposed effective date of such removal, except where the health or safety of the child requires that he be removed immediately from the foster family home. Such notification shall further
advise the foster family parents that they may request a conference with the social services official or a designated employee of his social services department at which time they may appear, with or without a representative to have the proposed action reviewed, be advised of the reasons therefore and be afforded an opportunity to submit reasons why the child should not be removed. Each social services official shall instruct and require any authorized agency acting on his behalf to furnish notice in accordance with the provisions of this section. Foster parents who do not object to the removal of the child from their home may waive in writing their right to the 10 day notice, provided, however, that such waiver shall not be executed prior to the social services official's determination to remove the child from the foster home and notifying the foster parents thereof.
"(b) Upon the receipt of a request for such conference, the social services official shall set a time and place for such conference to be held within 10 days of receipt of such request and shall send written notice of such conference to the foster family parents and their representative, if any, and to the authorized agency, if any, at least five days prior to the date of such conference.
"(c) The social services official shall render and issue his decision as expeditiously as possible but not later than five days after the conference and shall send a written notice of his decision to the foster family parents and their representative, if any, and to the authorized agency, if any. Such decision shall advise the foster family parents of their right to appeal to the department and request a fair hearing in accordance with section 400 of the Social Services Law.
"(d) In the event there is a request for a conference, the child shall not be removed from the foster family home until at least three days after the notice of decision is sent, or prior to the proposed effective date of removal, whichever occurs later.
"(e) In any agreement for foster care between a social services official or another authorized agency acting on his behalf and foster parents, there shall be contained therein a statement of a foster parent's rights provided under this section."
4
Joint App. to Jurisdictional Statements 54a. See Organization of Foster Families v. Dumpson, 418 F.Supp. 277, 278 (S.D.N.Y.1976).
5
Intervenor Naomi Rodriguez, who is blind, placed her newborn son Edwin in foster care in 1973 because of marital difficulties. When Mrs. Rodriguez separated from her husband three months later, she sought return of her child. Her efforts over the next nine months to obtain return of the child were resisted by the agency, apparently because it felt her handicap prevented her from providing adequate care. Eventually, she sought return of her child in the state courts, and finally prevailed, three years after she first sought return of the child. Rodriguez v. Dumpson, 52 A.D.2d 299, 383 N.Y.S.2d 883 (1976). The other named intervenors describe similar instances of voluntary placements during family emergencies followed by lengthy and frustrating attempts to get their children back.
6
The intervening natural parents argue in this Court that the District Court erred in not permitting them to raise certain defenses. In view of our disposition of the case, we find it unnecessary to reach this issue.
7
In an opinion handed down at the same time as its decision on the merits, the District Court granted class certification to appellee foster parents, the named children, and the intervening natural parents. Joint App. to Jurisdictional Statements 42a. See Organization of Foster Families v. Dumpson, supra, at 278 n. 3. Appellants in No. 76-5193 challenge the class certification of the children. We perceive no error.
8
The term "foster care" is often used more generally to apply to any type of care that substitutes others for the natural parent in the parental role, including group homes, adoptive homes, and institutions, as well as foster family homes. A. Kadushin, Child Welfare Services 355 (1967) (hereafter Kadushin). Cf. Mnookin, Foster Care In Whose Best Interests?, 43 Harv.Educ.Rev. 599, 600 (1973) (hereafter Mnookin I). Since this case is only concerned with children in foster family homes, the term will generally be used here in the more restricted sense defined in the text.
9
The record indicates that as many as 80% of the children in foster care in New York City are voluntarily placed. Deposition of Prof. David Fanshel, App. 178a. But cf. Child Welfare Information Services, Characteristics of Children in Foster Care, New York City Reports, Table No. 11 (Dec. 31, 1976). Other studies from New York and elsewhere variously estimate the percentage of voluntary placements between 50% and 90%. See, e. g., Mnookin, I 601; Areen, Intervention Between Parent and Child: A Reappraisal of the State's Role in Child Neglect and Abuse Cases, 63 Geo.L.J. 887, 921-922, and n. 185 (1975); Levine, Caveat Parens: A Demystification of the Child Protection System, 35 U.Pitt.L.Rev. 1, 29 (1973).
10
Experienced commentators have suggested that typical parents in this situation might be "(a) divorced parent in a financial bind, an unwed adolescent mother still too immature to rear a child, or a welfare mother confronted with hospitalization and therefore temporarily incapable of caring for her child." Weiss & Chase, The Case for Repeal of Section 383 of the New York Social Services Law, 4 Colum. Human Rights L.Rev. 325, 326 (1972). A leading text on child-care services suggests that "(f)amily disruption, marginal economic circumstances, and poor health" are principal factors leading to placement of children in foster care. Kadushin 366. Other studies suggest, however, that neglect, abuse, abandonment and exploitation of children, which presumably account for most of the children who enter foster care by court order, see infra, at 828, are also involved in many cases of voluntary placement. See infra, at 834; Kadushin 366.
11
"Authorized agency" is defined in N.Y.Soc.Serv. Law § 371(10) (McKinney 1976) and "includes any local public welfare children's bureau, such as the defendants New York City Bureau of Child Welfare and Nassau County Children's Bureau, and any voluntary child-care agency under the supervision of the New York State Board of Social Welfare, such as the defendant Catholic Guardian Society of New York." 418 F.Supp., at 278 n. 5.
An amicus curiae brief states that in New York City, 85% of the children in foster care are placed with voluntary child-care agencies licensed by the State, while most children in foster care outside New York City are placed directly with the local Department of Social Services. Brief for Legal Aid Society of City of New York, Juvenile Rights Division, as Amicus Curiae 14 n. 22.
12
Before enactment of § 384-a in 1975, the natural parent who had voluntarily placed a child in foster care had no automatic right to return of the child. If the agency refused consent for the return of the child to the parent, the parent's only remedy was to seek a writ of habeas corpus. N.Y.Civ.Prac.Law § 7001 et seq. (McKinney 1963); N.Y. Family Court Act § 651 (McKinney 1975). When the parent did not invoke this remedy, the child would remain in foster care. See Weiss & Chase, supra, n. 10, at 326-327, 333-334.
13
The record indicates that at the end of 1973, of 48,812 children in foster care under the supervision of the New York State Board of Social Welfare and the New York State Department of Social Services, 35,287 (about 72%) were placed in foster family homes, and the rest in institutions or other facilities. App. 117a.
14
Such contractual provisions are apparently also characteristic of foster-care arrangements in other States. See, e. g., Mnookin I 610.
15
See, e. g., the case of appellees Ralph and Christiane Goldberg, n. 1, supra. Evidence in the record indicates that as many as one-third of all transfers within the foster-care system are at the request of the foster parents. Affidavit of Carol J. Parry, App. 90a.
16
The resulting confusion not only produces anomalous legal relationships but also affects the child's emotional status. The foster child's loyalties, emotional involvements, and responsibilities are often divided among three adult authority figures the natural parent, the foster parent, and the social worker representing the foster-care agency. See, e.g., Kadushin 387-389; see also Mnookin I 624; Wald, State Intervention on Behalf of "Neglected" Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 Stan.L.Rev. 623, 645 (1976) (hereafter Wald); E. Weinstein, The Self-Image of the Foster Child 15 (1960).
17
"Legal custody is concerned with the rights and duties of the person (usually the parent) having custody to provide for the child's daily needs to feed him, clothe him, provide shelter, put him to bed, send him to school, see that he washes his face and brushes his teeth." Kadushin 354-355. Obviously, performance of these functions directly by a state agency is impractical.
18
"The agency sets limits and advances directives as to how the foster parents are to behave toward the child a situation not normally encountered by natural parents. The shared control and responsibility for the child is clearly set forth in the instruction pamphlets issued to foster parents." Id., at 394. Agencies frequently prohibit corporal punishment; require that children over a certain age be given an allowance; forbid changes in the child's sleeping arrangements or vacations out of State without agency approval; require the foster parent to discuss the child's behavioral problems with the agency. Id., at 394-395. Furthermore, since the cost of supporting the child is borne by the agency, the responsibility, as well as the authority, of the foster parent is shared with the agency. Ibid.
19
Voluntary placement in foster care is entirely distinct from the "surrender" of both "the guardianship of the person and the custody" of a child under Soc.Serv. Law § 384, which frees the child for adoption. § 384(2). "Adoption is the legal proceeding whereby a person takes another person into the legal relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person." N.Y.Dom.Rel. Law § 110 (McKinney 1964). A child may also be freed for adoption by abandonment or consent. § 111 (McKinney Supp. 1976-1977); Soc.Serv. Law § 384-b.
20
"(A)lthough the agency usually obtains legal custody in foster family care, the child still legally 'belongs' to the parent and the parent retains guardianship. This means that, for some crucial aspects of the child's life, the agency has no authority to act. Only the parent can consent to surgery for the child, or consent to his marriage, or permit his enlistment in the armed forces, or represent him at law." Kadushin 355. But see Soc.Serv. Law § 383-b.
21
The agreement transferring custody to the agency must inform the parent of these obligations. §§ 384-a(2)(c)(iii), (iv).
22
The Family Court is also empowered permanently to sever the ties of parent and child if the parent fails to maintain contact with the child while in foster care. § 384-b(4)-(7). See supra, at 828, and n. 21.
23
The record shows that in 1973-1974 approximately 80% of the children removed from foster homes in New York State after living in the foster home for one year or more were transferred to another foster placement. Thirteen percent were returned to the biological parents, and 7% were adopted. Tr. of Oral Arg. 34; Brief for Appellees 20.
24
This regulation, set out in full in n. 3, supra, was formerly numbered 18 N.Y.C.R.R. § 450.14, and is referred to by that number in the opinion of the District Court.
25
The State argues that while § 450.10 provides minimum requirements for notice to the foster family of the agency's intention to remove the child and the reasons for that decision, the close contact between the agency and the foster parent insures that in most circumstances the foster parent is informed well in advance of any projected removal. In fact, 18 N.Y.C.R.R. § 606.16 (1976) requires the agency in some circumstances to begin for the discharge of the children from foster care, in cooperation with all parties involved, as early as six months in advance. Brief for Appellants in No. 76-183, pp. 21-23.
26
This statute is set out in full in n. 3, supra.
27
A court, however, apparently may grant a stay in some circumstances. See e.g., In re W., 77 Misc.2d 374, 377, 355 N.Y.S.2d 245, 249 (1974).
28
There is some dispute whether the procedures set out in 18 N.Y.C.R.R. § 450.10 and Soc.Serv.Law § 400 apply in the case of a foster child being removed from his foster home to be returned to his natural parents. Application of these procedures to children who have been placed voluntarily, for example. arguably conflicts with the requirement of § 384-a(2)(a) that children in that situation be returned to the natural parent as provided in the placement agreement or within 20 days of demand. Similarly, if the child has been ordered returned by a court, it is unclear what purpose could be served by an administrative conference or hearing on the correctness of the decision to remove the child from the foster home. Moreover, since the § 400 hearing takes place after removal of the child from the foster home, the hearing would have no purpose if the child has been returned to its parents, since the agency apparently has no authority to take the child back from its parents against their will without court intervention.
Nevertheless, nothing in either the statute or the regulations limits the availability of these procedures to transfers within the foster-care system. Each refers to the decision to remove a child from the foster family home, and thus on its face each would seem to cover removal for the purpose of returning the child to its parents. Furthermore, it is undisputed on this record that the actual administrative practice in New York is to provide the conference and hearing in all cases where they are requested, regardless of the destination of the child. In the absence of authoritative state-court interpretation to the contrary, we therefore assume that these procedures are available whenever a child is removed from a foster family home.
29
SSC Procedure No. 5 is set out in full in App. to Brief for Appellants in No. 76-5193, pp. 54a-65a, and in Jurisdictional Statement of New York City Appellants A8.
30
The agency is required to initiate such a review when a child has remained in foster care for 18 months, § 392(2)(a), and if the child remains in foster care, the court "shall rehear the matter whenever it deems necessary or desirable, or upon petition by any party entitled to notice in proceedings under this section, but at least every twenty-four months." § 392(10).
31
If the agency already has guardianship as well as custody of the foster child, as in the case of a surrender or previous court order terminating the guardianship of the natural parent for neglect, see nn. 19, 22, supra, the court may simply order that the child be placed for adoption, § 392(7)(d); if the agency does not have guardianship, as in the case of children placed in foster care temporarily either by court order or by voluntary placement, the court may direct the agency to initiate a proceeding to free the child for adoption under §§ 384-b, 392(7)(c).
32
Both the District Court, 418 F.Supp., at 284, and the appellees, Brief for Appellees 70-72, argue that § 392 does not permit the court to enter such an order, citing In re W., supra, 77 Misc.2d, at 376, 355 N.Y.S.2d, at 248. But in that very case, the court ordered that the child remain with the foster family pending exhaustion of the remedies provided by § 400, thus essentially converting that hearing into a preremoval remedy. See n. 27, supra. Moreover, other courts have granted such relief. In re S., 74 Misc.2d 935, 347 N.Y.S.2d 274 (Fam.Ct.N.Y.Co.1973). See also In re Denlow, 87 Misc.2d 410, 384 N.Y.S.2d 621 (Fam.Ct.Kings Co.1976); In re H., 80 Misc.2d 593, 363 N.Y.S.2d 73 (Fam.Ct.St.Law.Co.1974). This interpretation of the power of the court seems to be fully supported by the broad language of § 392(7).
33
For further comment on this point, see Jenkins, Child Welfare as a Class System, in Children and Decent People 3, 11-12 (A. Schorr ed. 1974); Rein, Nutt, & Weiss, Foster Family Care: Myth and Reality, in Children and Decent People 24, 25-29 (A. Schorr ed. 1974) (hereafter Rein, Nutt, & Weiss).
34
See, e.g., the case of Rafael Serrano, the foster child of appellees Ralph and Christiane Goldberg, n. 1, supra.
35
Other factors alleged to bias agencies in favor of retention in foster care are the lack of sufficient staff to provide social work services needed by the natural parent to resolve their problems and prepare for return of the child; policies of many agencies to discourage involvement of the natural parent in the care of the child while in foster care; and systems of foster-care funding that encourage agencies to keep the child in foster care. Wald 677-679. See also E. Sherman, R. Neuman, & A. Shyne, Children Adrift in Foster Care: A study of Alternative Approaches 4-5 (1973).
36
For an example of this problem, see the case of intervenor Naomi Rodriguez, n. 5, supra.
Recent legislative reforms in New York that decrease agencies' discretion to retain a child in foster care are apparently designed to meet these objections. For example, Soc.Serv.Law § 384-a(2)(a) gives parents of children in voluntary foster placement greater rights to the return of their children. Since the statute permits placement agreements of varied terms, however, and since many children in foster care are not voluntarily placed, there may still be situations in which the agency has considerable discretion in deciding whether or not to return the child to the natural parent. The periodic court review provided by § 392 is also intended in part to meet these objections, but critics of foster care have argued that given the heavy caseloads, such review may often be perfunctory. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39(3) Law & Contemp. Probs. 226, 274-275 (1975) (hereafter Mnookin II). Moreover, judges too may find it difficult, in utilizing vague standards like "the best interests of the child," to avoid decisions resting on subjective values.
37
The New York Legislature has recognized the merit of this criticism. Social Serv.Law § 384-b(1)(b), adopted in 1976, states:
"The legislature further finds that many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens."
38
In New York City, 23.1% of foster children enter foster care when under one year of age, and 43% at age three or under. Child Welfare Information Services, supra, n. 9, Table No. 5. Cf. E. Sherman, R. Neuman, & A. Shyne, supra, at 24 (18% of foster-care children in Rhode Island study were under one year of age when they entered foster care, and 43% were under the age of three).
39
One study of parental contacts in New York City found that 57.4% of all foster children had had no contact with their natural parents for the previous six months. Child Welfare Information Services, Parental Visiting Information, New York City Reports, Table No. 1 (Dec. 31, 1976).
40
The development of such ties points up an intrinsic ambiguity of foster care that is central to this case. The warmer and more homelike environment of foster care is intended to be its main advantage over institutional child care, yet because in theory foster care is intended to be only temporary, foster parents are urged not be become too attached
to the children in their care. Mnookin I 613. Indeed, the New York courts have upheld removal from a foster home for the very reason that the foster parents had become too emotionally involved with the child. In re Jewish Child Care Assn. (Sanders), 5 N.Y.2d 222, 183 N.Y.S.2d 65, 156 N.E.2d 700 (1959). See also the case of the Lhotans, named appellees in this case, n. 1, supra.
On the other hand, too warm a relation between foster parent and foster child is not the only possible problem in foster care. Qualified foster parents are hard to find, Kadushin 367-372, 415-417, and very little training is provided to equip them to handle the often complicated demands of their role, Rein, Nutt, & Weiss 44-45; it is thus sometimes possible that foster homes may provide inadequate care. Indeed, situations in which foster children were mistreated or abused have been reported. Wald 645. And the social work services that are supposed to be delivered to both the natural and foster families are often limited, due to the heavy caseloads of the agencies. Kadushin 413; Mnookin II 274. Given these problems, and given that the very fact of removal from even an inadequate natural family is often traumatic for the child, Wald 644-645, it is not surprising that one commentator has found "rather persuasive, if still incomplete, evidence that throughout the United States, children in foster care are experiencing high rates of psychiatric disturbance." Eisenberg, The Sins of the Fathers: Urban Decay and Social Pathology, 32 Am.J. of Orthopsychiatry 5, 14 (1962).
41
It must be noted, however, that both appellee foster parents and intervening natural parents present incomplete pictures of the foster-care system. Although seeking relief applicable to all removal situations, the foster parents focus on intra-foster-care transfers, portraying a foster-care system in which children neglected by their parents and condemned to a permanent limbo of foster care are arbitrarily shunted about by social workers whenever they become attached to a foster home. The natural parents, who focus on foster children being returned to their parent, portray a system under which poor and minority parents, deprived of their children under hard necessity and bureaucratic pressures, are obstructed in their efforts to maintain relationships with their children and ultimately to regain custody, by hostile agencies and meddling foster parents. As the experiences of the named parties to this suit, nn. 1, 5, supra, and the critical studies of foster care cited, supra, at 833-838, demonstrate, there are elements of truth in both pictures. But neither represents the whole truth about the system.
42
Appellees have also apparently abandoned their claim that the challenged procedures violate the Equal Protection Clause of the Fourteenth Amendment.
43
The dissenting judge argued that the court's underlying premise was a holding "over the objection of the representative of the children . . . that the foster children have a 'liberty' interest in their relationship with the foster parents." 418 F.Supp., at 288. If this was in fact the reasoning of the District Court, we do not see how it differs from a holding that the foster family relationship is entitled to privacy protection analogous to the natural family the issue the District Court purported not to reach.
44
Appellants argue, with the dissenting judge below, id., at 288, that in any event appellee foster parents have no standing to rely upon a supposed right of the foster children to avoid "grievous loss," because the foster children are independently represented by court-appointed counsel who has consistently opposed the relief requested by appellees, and denied that the children have any such right.
This argument misunderstands the peculiar circumstances of this lawsuit. Ordinarily, it is true, a party would not have standing to assert the rights of another, himself a party in the litigation; the third party himself can decide how best to protect his interests. But children usually lack the capacity to make that sort of decision, and thus their interest is ordinarily represented in litigation by parents or guardians. In this case, however, the State, the natural parents, and the foster parents, all of whom share some portion of the responsibility for guardianship of the child, see supra, at 826-828, and nn.16-18, are parties, and all contend that the position they advocate is most in accord with the rights and interests of the children. In this situation, the District Court properly appointed independent counsel to represent the children, so that the court could have the benefit of an independent advocate for the welfare of the children, unprejudiced by the possibly conflicting interests and desires of the other parties. It does not follow, however, that that independent counsel, who is not a guardian ad litem of the children, is solely authorized to determine the children's best interest.
No party denies, or could deny, that there is an Art. III "case or controversy" between the foster parents and the defendant state officials concerning the validity of the removal procedures. Accordingly, their standing to raise the rights of the children in their attack on those procedures is a prudential question. Craig v. Boren, 429 U.S. 190, 193, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976). We believe it would be most imprudent to leave entirely to court-appointed counsel the choices that neither the named foster children nor the class they represent are capable of making for themselves, especially in litigation in which all parties have sufficient attributes of guardianship that their views on the rights of the children should at least be heard.
45
There can be, of course, no doubt of appellees' standing to assert this interest, which, to whatever extent it exists, belongs to the foster parents as much as to the foster children.
46
Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (plurality opinion); Roe v. Wade, 410 U.S. 113, 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); 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 in judgment); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573-574, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042 (1923).
47
See, e. g., Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953).
48
Of course, recognition of a liberty interest in foster families for purposes of the procedural protections of the Due Process Clause would not necessarily require that foster families be treated as fully equivalent to biological families for purposes of substantive due process review. Cf. Moore v. City of East Cleveland, supra, 431 U.S., at 546-547, 97 S.Ct., at 1960 (White, J., dissenting).
49
The scope of these rights extends beyond natural parents. The "parent" in Prince itself, for example, was the child's aunt and legal custodian. 321 U.S., at 159, 64 S.Ct., at 439. And see Moore v. City of East Cleveland, supra, 431 U.S., at 504-506, 97 S.Ct., at 1938-1939 (plurality opinion); 507-511, 97 S.Ct., at 1939-1942 (Brennan, J., concurring).
50
Some Justices of the Court have suggested that, at least where the substantive protection of the Due Process Clause is involved, biological relationship alone is not sufficient to create a constitutionally protected "family." Moore v. City of East Cleveland, supra, 431 U.S., at 536-540, 97 S.Ct., at 1954-1957 (Stewart, J., dissenting); id., at 549, 97 S.Ct., at 1961 (White, J., dissenting).
51
Adoption, for example, is recognized as the legal equivalent of biological parenthood. See, e. g., N.Y.Dom.Rel.Law § 110, supra, n. 19.
52
The briefs dispute at some length the validity of the "psychological parent" theory propounded in J. Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the Child (1973). That book, on which appellee foster parents relied to some extent in the District Court, is indeed controversial. See, e. g., Strauss & Strauss, Book Review, 74 Colum.L.Rev. 996 (1974); Kadushin, Beyond the Best Interests of the Child: An Essay Review, 48 Soc.Serv.Rev. 508, 512 (1974). But this case turns, not on the disputed validity of any particular psychological theory, but on the legal consequences of the undisputed fact that the emotional ties between foster parent and foster child are in many cases quite close, and undoubtedly in some as close as those existing in biological families.
53
The legal status of families has never been regarded as controlling: "Nor has the (Constitution) refused to recognize those family relationships unlegitimized by a marriage ceremony." Stanley v. Illinois, 405 U.S., at 651, 92 S.Ct., at 1213.
54
The New York Court of Appeals has as a matter of state law "(p) articularly rejected . . . the notion . . . that third-party custodians may acquire some sort of squatter's rights in another's child." Bennett v. Jeffreys, 40 N.Y.2d 543, 552 n.2, 387 N.Y.S.2d 821, 829, n. 2, 356 N.E.2d 277, 285 n. 2 (1976).
55
The judgment of the District Court contains a provision (see Jurisdictional Statements, Joint App. 36a, 37a), not suggested in the opinion, that "hearings need not be held when the foster child is to be removed . . . at the request of the foster parent." At oral argument, counsel for the foster parents stated that this limitation was the result of "a practical consideration . . . . (I)f a foster parent feels that the child cannot stay with the foster parent any longer, it doesn't make sense to try and impose that. . . . (I)t's hard to contemplate a situation in which it would be in the best interest of a child to stay with people that had asked that the child be taken." Tr. of Oral Arg. 49. As many as one-third of transfers between foster homes may be at the request of the foster parents. N. 15, supra.
56
"As of July 1, 1974, New York City has provided, at the foster parent's request, as a substitute for or supplement to the agency conference, a pre-removal 'independent review' conducted 'in accordance with the concepts of due process.' Its salient features, as set forth in an internal memorandum of August 5, 1974, are as follows: (1) the review is heard before a supervisory official who has had no previous involvement with the decision to remove the child; (2) both the foster parents and the agency may be represented by counsel and each may present witnesses and evidence; (3) all witnesses must be sworn, unless stipulated otherwise, and all testimony is subject to cross-examination; (4) counsel for the foster parents must be allowed to examine any portion of the agency's files used to support the proposal to remove the child; (5) either a tape recording or stenographic record of the hearing must be kept and made available to the parties at cost; and (6) a written decision, supported by reasons, must be rendered within five days and must include a reminder to the foster parents that they may still request a post-removal hearing under N.Y.C.R.R. § 450.14." 418 F.Supp., at 285.
57
The District Court itself apparently relied on similar logic, in exempting in its judgment removals requested by foster parents from the mandatory hearing requirement. See n.55, supra. In terms of the emotional cohesion of the family, the difference between a foster parent who requests removal of the foster child, and one who merely consents to removal seems irrelevant.
58
In assessing the likelihood of erroneous decisions by the agency in the absence of elaborate hearing procedures, the fact that the agency bears primary responsibility for the welfare of the child, and maintains, through its caseworkers, constant contact with the foster family is relevant. The foster parent always has the opportunity to present information to the agency at this stage. We, of course, do not suggest that such informal "process" can ever do service for the fundamental requirements of due process. Cf. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). But it should not routinely be assumed that any decision made without the forms of adversary factfinding familiar to the legal profession is necessarily arbitrary or incorrect.
59
Appointment of such representatives in each of the numerous cases in which the foster child is very young would, of course, represent a major administrative burden on the State. This burden would be balanced by little gain in accuracy of decisionmaking, since the appointed representative's inquiry into the best interests of the child would essentially duplicate that already conducted by the agency and that to be conducted at the hearing by the administrative decisionmaker.
Moreover, the State's interest in avoiding "fiscal and administrative burdens," Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), is not the only interest that must be weighed against requiring still more elaborate hearing procedures. As the District Court acknowledged, where delicate judgments concerning "the often ambiguous indices of a child's emotional attachments and psychological development" are involved, we must also consider the possibility that making the decisionmaking process increasingly adversary "might well impede the effort to elicit the sensitive and personal information required," 418 F.Supp., at 286, or make the struggle for custody, already often difficult for the child, see, e. g., Kadushin 404, even more traumatic. In such a situation, there is a value in less formalized hearing procedures. See also n. 57, supra.
60
Since the class certified by the District Court embraces all foster parents who have had a foster child living with them for over one year, while § 392 is limited in application to children in foster care for 18 months, each class includes some children not included in the other. For example, a child who had been in foster care for 13 months, all of it with the same family, is a member of the certified class but not eligible for § 392 review. On the other hand, a child who has been in foster care for two years, but not with the same family, is eligible for § 392 review but is not a member of the certified class.
61
In this Court, as in the District Court, the primary reliance of the defendants and intervenors has been on the adequacy of § 392 as a procedure for protecting the interests of the foster family, without as fully addressing the adequacy otherwise of the procedures provided by 18 N.Y.C.R.R. § 450.10 and Soc.Serv.Law § 400. Our consequent emphasis upon the adequacy of § 392 procedures as requiring reversal of the District Court is not to be understood to imply any view upon the adequacy of the alternative administrative remedies to protect those interests.
1
The Court's opinion seems to indicate that there is no reason to distinguish between the claims of the foster parents and the foster children, either because the parents have standing to assert the rights of the children or because the parents' interest is identical to that of the children. See ante, at 841-842, nn. 44, 45. I cannot agree.
First, it is by no means obvious that foster parents and foster children have the same interest in a continuation of their relationship. When the child leaves the foster family, it is because the agency with custody of him has determined that his interests will be better served by a new home, either with his natural parents, adoptive parents, or a different foster family. Any assessment of the child's alleged deprivation must take into account not only what he has lost, but what he has received in return. Foster parents, on the other hand, do not automatically receive a new child with whom they will presumably have a more profitable relationship.
Second, unlike the situation in Craig v. Boren, 429 U.S. 190, 195-196, 97 S.Ct. 451, 455-456, 50 L.Ed.2d 397, this is not a case where the failure to grant the parents their requested relief will inevitably tend to "(dilute) or adversely (affect)" the alleged constitutional rights of the children. Denying the parents a hearing simply has no effect whatever on the children's separate claim to a hearing and does not impair their alleged constitutional rights. There is therefore no standing in the parents to assert the children's claims. See Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 432 (1974), cited in Craig, supra, at 195, 97 S.Ct., at 455.
I would nevertheless consider both the parents' and the children's claims in these cases, but only because the suit was originally brought on behalf of both the parents and the children, all of whom were parties plaintiff. While it is true that their interests may conflict, there was no reason not to allow counsel for the parents to continue to represent the children to the extent that their interests may be compatible. The conflict was avoided by the District Court's appointment of independent counsel, who took a position opposite to that of the foster parents as to where the children's welfare lay. The appointment of independent counsel, however, should not have left the children without advocacy for the position, right or wrong, that they are entitled to due process hearings. That position should have been left to be asserted by the counsel who originally brought the suit for the children. My view, therefore, is that the parents and their children are properly before the Court and entitled to assert their own separate claims, but that neither group has standing to assert the claims of the other.
2
"That the Sanders have given Laura a good home and have shown her great love does not stamp as an abuse of discretion the Trial Justice's determination to take her from them. Indeed, it is the extreme of love, affection and possessiveness manifested by the Sanders, together with the conduct which their emotional involvement impelled, that supplies the foundation of reasonableness and correctness for his determination. The vital fact is that Mr. and Mrs. Sanders are not, and presumably will never be, Laura's parents by adoption. Their disregard of that fact and their seizure of full parental status in the eyes of the child might well be, or so the Trial Justice was entitled to find, a source of detriment to the child in the circumstances presented." 5 N.Y.2d., at 229, 183 N.Y.S.2d, at 70, 156 N.E.2d, at 703.
3
The consequences of extending constitutional protection to the foster family relationship are, as the Court points out, ante, at 846-847, especially absurd when the child would otherwise be immediately returned to his natural parents. If the foster family relationship were to occupy the same constitutional plane as that of the natural family, the conflict between the constitutional rights of natural and foster parents would be totally irreconcilable.
| 34
|
432 U.S. 43
97 S.Ct. 2205
53 L.Ed.2d 96
NATIONAL SOCIALIST PARTY OF AMERICA et al.v.VILLAGE OF SKOKIE.
No. 76-1786.
Decided June 14, 1977.
PER CURIAM.
1
On April 29, 1977, the Circuit Court of Cook County entered an injunction against petitioners. The injunction prohibited them from performing any of the following actions within the village of Skokie, Ill.: "(m)arching, walking or parading in the uniform of the National Socialist Party of America; (m)arching, walking or parading or otherwise displaying the swastika on or off their person; (d)istributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion." The Illinois Appellate Court denied an application for stay pending appeal. Applicants then filed a petition for a stay in the Illinois Supreme Court, together with a request for a direct expedited appeal to that court. The Illinois Supreme Court denied both the stay and leave for an expedited appeal. Applicants then filed an application for a stay with Mr. Justice Stevens, as Circuit Justice, who referred the matter to the Court.
2
(1, 2) Treating the application as a petition for certiorari from the order of the Illinois Supreme Court, we grant certiorari and reverse the Illinois Supreme Court's denial of a stay. That order is a final judgment for purposes of our jurisdiction, since it involved a right "separable from, and collateral to" the merits, Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); cf. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476-487, 95 S.Ct. 1029, 1036-1042, 43 L.Ed.2d 328 (1975). It finally determined the merits of petitioners' claim that the outstanding injunction will deprive them of rights protected by the First Amendment during the period of appellate review which, in the normal course, may take a year or more to complete. If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), including immediate appellate review, see Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 1327, 96 S.Ct. 237, 251, 46 L.Ed.2d 199, 237 (1975) (Blackmun, J., in chambers). Absent such review, the State must instead allow a stay. The order of the Illinois Supreme Court constituted a denial of that right.
3
Reversed and remanded for further proceedings not inconsistent with this opinion.
4
So ordered.
5
Mr. Justice WHITE would deny the stay.
6
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, dissenting.
7
The Court treats an application filed here to stay a judgment of the Circuit Court of Cook County as a petition for certiorari to review the refusal of the Supreme Court of Illinois to stay the injunction. It summarily reverses this refusal of a stay. I simply do not see how the refusal of the Supreme Court of Illinois to stay an injunction granted by an inferior court within the state system can be described as a "(f)inal judgmen(t) or decre(e) rendered by the highest court of a State in which a decision could be had", which is the limitation that Congress has imposed on our jurisdiction to review state-court judgments under 28 U.S.C. § 1257. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476-487, 95 S.Ct. 1029, 1036-1042, 43 L.Ed.2d 328 (1975), relied upon by the Court which surely took as liberal a view of this jurisdictional grant as can reasonably be taken, does not support the result reached by the Court here. In Cox there had been a final decision on the federal claim by the Supreme Court of Georgia, which was the highest court of that State in which such a decision could be had. Here all the Supreme Court of Illinois has done is, in the exercise of the discretion possessed by every appellate court, to deny a stay of a lower court ruling pending appeal. No Illinois appellate court has heard or decided the merits of applicants' federal claim.
8
I do not disagree with the Court that the provisions of the injunction issued by the Circuit Court of Cook County are extremely broad, and I would expect that if the Illinois appellate courts follow cases such as Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 96 S.Ct. 237, 46 L.Ed.2d 199 (1975), relied upon by the Court, the injunction will be at least substantially modified by them. But I do not believe that in the long run respect for the Constitution or for the law is encouraged by actions of this Court which disregard the limitations placed on us by Congress in order to assure that an erroneous injunction issued by a state trial court does not wrongly interfere with the constitutional rights of those enjoined.
| 23
|
432 U.S. 173
97 S.Ct. 2238
53 L.Ed.2d 199
Marvin MANDEL, Governor of Maryland, et al., Appellants,v.Bruce BRADLEY et al.
No. 76-128.
June 16, 1977.
PER CURIAM.
1
Candidates for statewide or federal office in Maryland may obtain a place on the general election ballot by filing with the State Administrative Board of Election Laws a certificate of candidacy 70 days before a political party's primary election and then by winning the primary. Alternatively, under provisions of the Maryland Elec. Code, a candidate for statewide or federal office may qualify for a position on the general election ballot as an independent by filing, 70 days before the date on which party primaries are held, nominating petitions signed by at least 3% of the State's registered voters and a certificate of candidacy. Md. Election Code Ann. § 7-1, (1976 and Supp.1976). In Presidential election years this filing date occurs approximately 230 to 240 days before the general election. In other years it occurs about 120 days before the general election. §§ 1-1(a)(8), 5-2, 7-1.
2
Appellee Bruce Bradley decided in the spring of 1975 to run as an independent candidate for the United States Senate in 1976, a Presidential election year. Starting in the fall of 1975 Bradley collected signatures on nominating petitions. The requisite number was 51,155. On March 8, 1976, the deadline for filing, Bradley submitted 53,239 signatures and filed a certificate of candidacy for the Senate seat. However, on April 15, 1976, the State Administrative Board of Election Laws determined that only 42,049 of the signatures were valid and denied him a place on the ballot.
3
Two weeks later, Bradley and the other appellees petition signers and other voter supporters of Bradley filed the instant suit, alleging that the procedures mandated by § 7-1 of the Md.Elec.Code (1976 and Supp. 1976) constitute an unconstitutional infringement of their associational and voting rights under the First and Fourteenth Amendments. They complained that Maryland's early filing date made it more difficult for Bradley to obtain the requisite number of signatures than for a party member to win a primary and sought, inter alia, an injunction against future enforcement of the offending provision of Maryland's election procedures. A three-judge District Court agreed with the appellees that the early filing deadline of § 7-1(i)(Supp. 1976) was an unconstitutional burden on an independent candidate's access to the ballot and ordered the appellants to give Bradley 53 days after the party primaries to gather the requisite number of signatures.1
4
The court based its holding on our summary affirmance in Tucker v. Salera, 424 U.S. 959, 96 S.Ct. 1451, 47 L.Ed.2d 727 (1976), aff'g 399 F.Supp. 1258 (E.D.Pa.1975). In Salera, a three-judge court declared unconstitutional a Pennsylvania law setting the deadline for an independent candidate to gather signatures to obtain a place on the ballot 244 days before the general election in a Presidential election year. Under the Pennsylvania law, independents had to submit signatures of only 2% of the largest vote cast for any candidate in the preceding statewide general election, but they had to gather the required signatures within a 21-day period prior to the filing deadline. In declaring the Pennsylvania statute invalid, the three-judge court relied, not on the short period for signature gathering (which it thought was valid under Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)), but solely on the early deadline for submission of the necessary signatures. The court found that the deadline substantially burdened ballot access of independents by requiring them to obtain the necessary signatures at a time when the election issues were undefined and the voters were apathetic. It also rejected various countervailing state interests that had been urged. This Court summarily affirmed the judgment of the three-judge court in Salera.
5
The three-judge court in this case viewed this Court's summary affirmance in Salera as controlling precedent for the proposition that early filing dates, such as that employed in Maryland, are unconstitutionally burdensome on the independent candidate's access to the ballot, and therefore decided in favor of the appellees. We noted probable jurisdiction, 429 U.S. 813, 97 S.Ct. 52, 50 L.Ed.2d 73 (1976).
6
The District Court erred in believing that our affirmance in Salera adopted the reasoning as well as the judgment of the three-judge court in that case and thus required the District Court to conclude that the early filing date is impermissibly burdensome. Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), held that lower courts are bound by summary actions on the merits by this Court, but we noted that "(a)scertaining the reach and content of summary actions may itself present issues of real substance". Id., at 345 n. 14, 95 S.Ct., at 2290. Because a summary affirmance is an affirmance of the judgment only, the rationale of the affirmance may not be gleaned solely from the opinion below.
7
"When we summarily affirm, without opinion, . . . we affirm the judgment but not necessarily the reasoning by which it was reached. An unexplicated summary affirmance settles the issues for the parties, and is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument." (Footnote omitted.) Fusari v. Steinberg, 419 U.S. 379, 391-392, 95 S.Ct. 533, 541, 42 L.Ed.2d 521 (1975) (Burger, C. J., concurring).
8
Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions. After Salera, for example, other courts were not free to conclude that the Pennsylvania provision invalidated was nevertheless constitutional. Summary actions, however, including Salera, should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved.
9
Here, the District Court ruled that legally "Salera decides the issue before us, and as the latest expression of the Supreme Court, we are bound to follow it." App. to Jurisdictional Statement 12a. The precedential significance of the summary action in Salera, however, is to be assessed in the light of all of the facts in that case; and it is immediately apparent that those facts are very different from the facts of this case. There, in addition to the early filing date, signatures had to be gathered within a 21-day period. This limited time enormously increased the difficulty of obtaining the number of signatures necessary to qualify as an independent candidate.2
10
This combination of an early filing deadline and the 21-day limitation on signature gathering is sufficient to distinguish Salera from the case now before us, where there is no limitation on the period within which such signatures must be gathered. In short, Salera did not mandate the result reached by the District Court in this case.
11
Because of its preoccupation with Salera, the District Court failed to undertake an independent examination of the merits. The appropriate inquiry was set out in Storer v. Brown, supra, 415 U.S., at 742, 94 S.Ct., at 1285:
12
"(I)n the context of (Maryland) politics, could a reasonably diligent independent candidate be expected to satisfy the (ballot access) requirements, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot? Past experience will be a helpful, if not always an unerring, guide: it will be one thing if independent candidates have qualified with some regularity and quite a different matter if they have not. We note here that the State mentions only one instance of an independent candidate's qualifying . . . but disclaims having made any comprehensive survey of the official records that would perhaps reveal the truth of the matter."
13
In Storer itself, because the District Court had not applied these standards in adjudicating the constitutional issues before it, we remanded the case "to permit further findings with respect to the extent of the burden imposed on independent candidates." 415 U.S., at 740, 94 S.Ct., at 1284. There is no reason here for doing any less. The District Court did not sift through the conflicting evidence and make findings of fact as to the difficulty of obtaining signatures in time to meet the early filing deadline. It did not consider the extent to which other features of the Maryland electoral system such as the unlimited period during which signatures may be collected, or the unrestricted pool of potential petition signers moderate whatever burden the deadline creates. See Developments in the Law Elections, 88 Harv.L.Rev. 1111, 1142-1143 (1975). It did not analyze what the past experience of independent candidates for statewide office might indicate about the burden imposed on those seeking ballot access. Instead, the District Court's assumption that the filing deadline by itself was per se illegal as well as the expedited basis upon which the case necessarily was decided3 resulted in a failure to apply the constitutional standards announced in Storer to the statutory provisions here at issue.4
14
The application of those standards to the evidence in the record is, in the first instance, a task for the District Court. We therefore vacate the judgment, and remand the case for further proceedings consistent with this opinion.5
15
It is so ordered.
16
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
17
Mr. Justice BRENNAN, concurring.
18
I join the opinion of the Court but write to emphasize the Court's treatment of the rule announced in Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975).
19
In a dissent from the denial of certiorari in Colorado Springs Amusements, Ltd. v. Rizzo, 428 U.S. 913, 96 S.Ct. 3228, 49 L.Ed.2d 1222 (1976), I stated why, in my view, the federal and state courts should give "appropriate, but not necessarily conclusive, weight to our summary dispositions", id., at 923, 96 S.Ct., at 3233 rather than be required, as the Court held in Hicks, "to treat our summary dispositions of appeals as conclusive precedents regarding constitutional challenges to like state statutes or ordinances." 428 U.S., at 913, 96 S.Ct., at 3229.
20
The Court by not relying on our summary affirmance in Tucker v. Salera, 424 U.S. 959, 96 S.Ct. 1451, 47 L.Ed.2d 727 (1976), and Auerbach v. Mandel, 409 U.S. 808, 93 S.Ct. 55, 34 L.Ed.2d 69 (1972), effectively embraces that view, and vividly exposes the ambiguity inherent in summary dispositions and the nature of the detailed analysis that is essential before a decision can be made whether it is appropriate to accord a particular summary disposition precedential effect. After today, judges of the state and federal systems are on notice that, before deciding a case on the authority of a summary disposition by this Court in another case, they must (a) examine the jurisdictional statement in the earlier case to be certain that the constitutional questions presented were the same and, if they were, (b) determine that the judgment in fact rests upon decision of those questions and not even arguably upon some alternative nonconstitutional ground. The judgment should not be interpreted as deciding the constitutional questions unless no other construction of the disposition is plausible. In other words, after today, "appropriate, but not necessarily conclusive, weight" is to be given this Court's summary dispositions.
21
Mr. Justice WHITE, with whom Mr. Justice POWELL joins, concurring.
22
Although there are many indications in the District Court's opinion that it not only considered Tucker v. Salera, 424 U.S. 959, 96 S.Ct. 1451, 47 L.Ed.2d 727 (1976), controlling, but also independently invalidated the Maryland law on grounds similar to or the same as those employed in Salera in which event, a remand would be inappropriate it is fairly arguable that the District Court should unmistakably record its opinion as to the validity of the Maryland law. A number of my Brethren are of this view, and I defer to their judgment.
23
Mr. Justice STEVENS, dissenting.
24
In my judgment the Maryland statute unfairly discriminates against independent candidates in one respect. It requires the independent to make his decision to become a candidate much sooner than a member of a national political party.
25
A party member is merely required to file a certificate of candidacy 70 days before the primary election. That procedure is so simple that he may postpone his decision until that very day and still satisfy all legal requirements for candidacy. In contrast, the independent must complete the signature gathering process by the 70th day preceding the primary election. Since the task of obtaining the signatures of 3% of the registered voters inevitably will require a significant amount of time, the independent must make his decision to run well in advance of the filing deadline.
26
In my opinion, the State has not put forward any justification for this disparate treatment. Moreover, it is potentially a matter of great significance. The decision to become a candidate may be prompted by a sudden, unanticipated event of great national or local importance. If such an event should occur on the 71st day before a primary, national party members could make a timely decision to run but independents could not.
27
The statute should be evenhanded in its impact on the timing of the most important decision any candidate must make. The burdens that an independent must shoulder are heavy enough without requiring him to make that decision before his most formidable opponents must do so.*
28
On the basis of the record developed in the District Court, and the full argument on the merits in this Court, I would therefore affirm the judgment.
1
Bradley successfully gathered the requisite number of signatures, obtained a place on the ballot, ran, and lost. This case is nonetheless not moot. Storer v. Brown, 415 U.S. 724, 737, n. 8, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974).
2
In Storer v. Brown, supra, as the District Court noted, the 24-day limitation was not by itself enough to invalidate the statute, but we clearly recognized that the limitation, when combined with other provisions of the election law, might invalidate the statutory scheme. 415 U.S., at 742-743, 94 S.Ct. at 1285. The District Court in this case erred in reading Storer v. Brown as holding irrelevant the limited period of time in which signatures must be gathered.
3
The appellees filed this action on April 30, 1976. The three-judge court was convened and heard argument on May 12, and it announced its decision on May 17.
4
There is evidence in the record that in both 1972 and 1976 the only years in which the early deadline was effective no candidate for statewide office succeeded in qualifying for the ballot. There is also evidence tending to substantiate the appellees' contention that there existed a variety of obstacles in the way of obtaining support for an independent candidate far in advance of the general election. Without intimating any ultimate view on the merits of the appellees' challenge, we have no doubt that it has sufficient substance to warrant a remand for further proceedings.
5
The District Court will be free on remand to consider the appellees' argument that the "technical and administrative requirements of the petition signing process" are an unconstitutional burden on ballot access a question never reached in view of the decision for the appellees and Bradley's ultimate success in qualifying for the ballot.
*
In Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554, this Court upheld the Georgia filing procedures applicable to independent candidates seeking a place on the general election ballot. These procedures required the independent candidate to collect signatures of at least 5% of the number of registered voters at the last general election for the office in question. Id., at 432, 91 S.Ct., at 1971. The independent candidate had 180 days in which to accomplish this task and had to file the completed petitions by the same deadline which a party candidate had to meet. Id., at 433-434, 91 S.Ct., at 1971-1972. Thus, the procedures for filing by independents under the Georgia statute are similar to those aspects of the Maryland procedures in issue here which I find place such a handicap on independent candidates. However, the question I find decisive in this case was neither raised nor decided by the Court in Jenness, see id., at 434, 91 S.Ct., at 1972. Thus, that decision is not controlling on this point, KVOS, Inc. v. Associated Press, 299 U.S. 269, 279, 57 S.Ct. 197, 201, 81 L.Ed. 183, quoting Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (" 'Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.' ").
For the reasons stated in Edelman v. Jordan, 415 U.S. 651, 670-671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662, I do not regard the summary affirmance in Auerbach v. Mandel, 409 U.S. 808, 93 S.Ct. 55, 34 L.Ed.2d 69, as controlling.
| 12
|
432 U.S. 183
97 S.Ct. 2283
53 L.Ed.2d 209
Ruby JONES, Petitioner,v.Douglas HILDEBRANT et al.
No. 76-5416.
June 16, 1977.
PER CURIAM.
1
Petitioner is the mother of a 15-year-old boy who was shot and killed by respondent Hildebrant, while respondent was acting in his capacity as a Denver police officer. Petitioner brought suit in her own behalf in state court. Respondent defended on the ground that he shot petitioner's son as a fleeing felon using no more force than was reasonably necessary. The amended complaint asserted three claims for relief: battery; negligence; and intentional deprivation of federal constitutional rights. Although not specifically pleaded, the first two claims were admittedly based on the Colorado wrongful-death statute, Colo.Rev.Stat.Ann. § 13-21-202 (1973),1 and the third, on 42 U.S.C. § 1983. While petitioner alleged damages of $1,500,000, she stipulated to a reduction of her prayer for relief with respect to the first two claims, since the Colorado wrongful-death statute admittedly limited her maximum recovery to $45,000, Colo.Rev.Stat.Ann. § 13-21-203 (1973). The trial court also ruled that petitioner's § 1983 claim was "merged" into her first claim and, accordingly, dismissed her § 1983 claim. The remaining claims went to the jury, which returned a verdict for $1,500.2
2
On petitioner's appeal, the Supreme Court of Colorado affirmed. 191 Colo. 1, 550 P.2d 339 (1976). Her petition for certiorari presented a single question for review here:
3
"Where the black mother of a 15-year-old child who was intentionally shot and killed by a white policeman acting under the color of state law brings a suit in state court pursuant to 42 U.S.C. § 1983, what is the measure of damages? Particularly, can the state measure of damages cancel and displace an action brought pursuant to 42 U.S.C. § 1983?"
4
We granted certiorari to consider what was thus explicitly presented as a question of whether a State's limitation on damages in a wrongful-death statute would control in an action brought pursuant to § 1983. 429 U.S. 1061, 97 S.Ct. 784, 50 L.Ed.2d 776 (1977).
5
The majority opinion in the Supreme Court of Colorado proceeds on the assumption that if the Colorado wrongful death statute applied to petitioner's claim, her recovery would be limited to $45,000. It held that this limitation did apply even to the one count of petitioner's complaint based on 42 U.S.C. § 1983.
6
A necessary assumption for this position would seem to be that petitioner was suing to recover damages for injuries under § 1983 which were the same injuries as are covered by the state wrongful-death action. The question presented in the petition for certiorari is at the very least susceptible of that interpretation. But at oral argument, we were advised by counsel for petitioner that her sole claim of constitutional deprivation was not one of pecuniary loss resulting from her son's wrongful death, such as would be covered by the wrongful-death statute, but one based on her personal liberty. Her claim was described at oral argument as a constitutional right to raise her child without interference from the State; it has nothing to do with an action for "wrongful death" as defined by the state law. Tr. of Oral Arg. 4-5; see also id., at 8-13.
7
(1) An action for wrongful death, under Colorado law, is an action which may be brought by certain named survivors of a decedent who sustain a direct pecuniary loss upon the death of the decedent. It is "classified as a property tort action and cannot be classified as a tort action 'for injuries done to the person' ", Fish v. Liley, 120 Colo. 156, 163, 208 P.2d 930, 933 (1949).3 Petitioner, however, articulates here a quite different constitutional claim which does not fit into the Colorado wrongful-death mold. While petitioner's constitutional claim is based on an alleged deprivation of her own rights, and not on deprivation of those of her son's,4 the asserted deprivation is not for any "property loss," but, rather, for the right of a child's mother to raise the child as she sees fit.5
8
(2) This claim was not set forth in the complaint,6 was not even hinted at in petitioner's briefs to the Supreme Court of Colorado, and is only casually referred to in the opinion of that court. The majority opinion held that insofar as a claim for actual pecuniary loss was a property right conferred upon petitioner by the State's wrongful-death statute, the damages recoverable under it were limited by the terms of that statute. The majority opinion also refers in passing to a constitutional liberty right in petitioner herself, but its principal thrust is that petitioner's liberty claims, as presented to that court are "really those of her son," and not claims personal to her.7 This discussion, which occurs subsequent to that portion of the opinion in which the Supreme Court of Colorado concluded that state wrongful-death remedies were incorporated into § 1983 to vindicate civil rights violations "that result in death," does not intimate that similar limitations would exist in a § 1983 action where the alleged deprivation was that of liberty to a living plaintiff suing for a wrong done to her. We do not know how the Supreme Court of Colorado would have ruled on the damages limitation question had it found the § 1983 claim to be that of the deprivation of the mother's right to raise the child.
9
We have here then a shift in the posture of the case such that the question presented in the petition for certiorari is all but mooted by petitioner's oral argument. The question of whether a limitation on recovery of damages imposed by a state wrongful-death statute may be applied where death is said to have resulted from a violation of 42 U.S.C. § 1983 would appear to make sense only where the § 1983 damages claim is based upon the same injuries.8 This is the assumption on which the Supreme Court of Colorado proceeded in discussing whether the § 1983 claim "merged" in the wrongful death claim. The court does not intimate, or decide, that a § 1983 claim based on an alleged deprivation such as petitioner asserts here if the claim were otherwise cognizable would require remedial assistance from the state wrongful-death statute or that recovery on such a claim would be limited by that statute.
10
Petitioner's question presented assumes that the underlying constitutional violation necessary to support a § 1983 claim on her behalf is undisputed, and that the only question upon which petitioner takes issue with the majority of the Supreme Court of Colorado is the limitation on the amount of recovery. But it would seem possible, if not probable, that if petitioner had presented to the Supreme Court of Colorado the same claim she presented here in oral argument, that court's opinion would not have turned on the application of the state wrongful-death statute as a limitation on recovery of damages, since the underlying § 1983 claim deprivation of a right to raise children is not at all the same underlying claim for which the wrongful-death action provides recompense. Whatever the merits of her constitutional liberty claim in her own right, a question on which we do not intimate an opinion, it would not seem logically to be subject to a damages limitation contained in the statute permitting survivors to recover for wrongs done to a property interest of theirs. In presenting to this Court in her position for certiorari solely a damages issue of this nature, petitioner has wholly pretermitted the underlying question of whether she has been deprived of any constitutional liberty interest as a result of respondent's shooting of her son.
11
(3) In sum, the damages question which petitioner presents in her petition for certiorari is only the tip of the iceberg. The question of whether she was deprived of a constitutional liberty interest of her own was neither alleged in her complaint in the Colorado trial court, presented in the petition for certiorari in this Court, nor fairly subsumed in the question that was presented. See this Court's Rule 23(1)(c). The writ of certiorari is therefore dismissed as improvidently granted. Belcher v. Stengel, 429 U.S. 118, 97 S.Ct. 514, 50 L.Ed.2d 269 (1976).
12
It is so ordered.
13
Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
14
Physical abuses by police under color of state law may in some circumstances constitute a constitutional deprivation giving rise to criminal liability under the civil rights laws, even if the abuses result in the death of the victim, Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); and if the victim survives such abuses, it is now clear that he may recover damages under 42 U.S.C. § 1983 for the injuries that he has sustained. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Johnson v. Glick, 481 F.2d 1028 (CA2), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973); Howell v. Cataldi, 464 F.2d 272 (CA3 1972); Tolbert v. Bragan, 451 F.2d 1020 (CA5 1971); Jenkins v. Averett, 424 F.2d 1228 (CA4 1970); Collum v. Butler, 421 F.2d 1257 (CA7 1970); Allison v. California Adult Authority, 419 F.2d 822 (CA9 1969). There remains the question whether, independently or in conjunction with state law, § 1983 affords parents a cause of action for a wrongful killing of their child by a state law enforcement officer and, if it does, the further question as to the measure of damages in such case.
15
This Court has never addressed these issues.1 Beginning with Brazier v. Cherry, 293 F.2d 401 (CA5), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), however, the Courts of Appeals have permitted survivor suits under § 1983, at least where such actions are maintainable under state law. See, e. g., Spence v. Staras, 507 F.2d 554 (CA7 1974); Hall v. Wooten, 506 F.2d 564 (CA6 1974). See also Hampton v. City of Chicago, 484 F.2d 602, 607 (CA7 1973) (Stevens, J.), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974). In Brazier the Fifth Circuit held that an action by a widow against a police officer for the wrongful killing of her husband was maintainable under § 1983. There the Court of Appeals found that in enacting 42 U.S.C. § 1988, "Congress adopted as federal law the currently effective state law on the general right of survival." 293 F.2d, at 405. The same court has now ruled that a § 1983 action survives the death of the victim, despite state law to the contrary. Shaw v. Garrison, 545 F.2d 980 (1977).
16
It is thus apparent that the availability of § 1983 in wrongful-death actions is a recurring issue and that it is far from evident that the Colorado Supreme Court was correct in ruling that a § 1983 death action is tied to state law. It is clear that by enacting § 1983, Congress intended to create a federal right of action separate and independent from any remedies afforded under state law. See Monroe v. Pape, supra. State law may be relevant where a trial court is seeking to fix a remedy under § 1983, cf. Moor v. County of Alameda, 411 U.S. 693, 702-703, 93 S.Ct. 1785, 1792, 36 L.Ed.2d 596 (1973), but it is by no means clear that state law may serve as a limitation on recovery where the remedy provided under state law is inadequate to implement the purposes of § 1983. Thus, "both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. Cf. Brazier v. Cherry, 5 Cir., 293 F.2d 401. The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired." Sullivan v. Little Hunting Park, 396 U.S. 229, 240, 90 S.Ct. 400, 406, 24 L.Ed.2d 386 (1969). The Courts of Appeals have taken a similar approach by allowing recovery of punitive damages in suits brought under § 1983 even if state law would not have permitted them. See Caperci v. Huntoon, 397 F.2d 799 (CA1), cert. denied, 393 U.S. 940, 89 S.Ct. 299, 21 L.Ed.2d 276 (1968); Basista v. Weir, 340 F.2d 74, 84-88 (CA3 1965). See also Spence v. Staras, supra, 507 F.2d, at 558; Gill v. Manuel, 488 F.2d 799, 801-802 (CA9 1973); Annot., 14 A.L.R.Fed. 608 (1973).
17
Despite the importance of the question whether § 1983 is available when a state officer wrongfully takes a life, the Court dismisses the writ of certiorari as improvidently granted because in its view the critical issues are not properly before us. I disagree.
18
Petitioner included in her complaint filed in the trial court a claim for relief under 42 U.S.C. § 1983.2 That cause of action was dismissed on the ground that it was merged in the state wrongful-death action also included in the complaint. The Colorado Supreme Court rejected petitioner's claim that "her § 1983 claim should not have been dismissed", 191 Colo. 1, 5, 550 P.2d 339, 342 (1976), and in so doing rejected each of the "four distinct theories (advanced) to support her" § 1983 cause of action. 191 Colo., at 5, 550 P.2d, at 342.
19
One of petitioner's arguments was that §§ 1983 and 1988 together permit suits under § 1983 in reliance on state wrongful-death statutes but authorize recovery of damages free from the limitations of state law. The Colorado Supreme Court agreed that "s 1988 permits the incorporation of the states' non-abatement statutes and wrongful death statutes into § 1983 actions in order to effectually implement the policies of that legislation", 191 Colo., at 6, 550 P.2d, at 343-344 (footnotes omitted), and that in a federal suit "Colorado's wrongful death remedy would be engrafted into a § 1983 action". Id., at 7, 550 P.2d, at 344. But it disagreed with petitioner on the question of remedy, holding that any such § 1983 action was subject to the damages limitations of state law here the Colorado rule limiting recovery for wrongful death to direct pecuniary loss to the survivors; and because suit was brought in state court, the § 1983 case merged with the state wrongful-death action and was properly dismissed. Chief Justice Pringle and Justice Groves dissented, saying that they did not "believe that Colorado's judicial limitation of net pecuniary loss as a measure of damages for wrongful death applies to actions founded upon 42 U.S.C. § 1983 . . . ." 191 Colo., at 9, 550 P.2d, at 345-346.
20
In the course of arriving at this conclusion, the Colorado Supreme Court expressly rejected the other grounds offered by petitioner to sustain her § 1983 claim. First, because the Colorado statute permitted petitioner to bring her suit, she was not deprived of any civil right "without due process of law." 191 Colo., at 6, 550 P.2d, at 343. Second, the Colorado court rejected as contrary to congressional intent, the "theory . . . that a federal wrongful death remedy impliedly exists in § 1983, independent of state wrongful death remedies." Id., at 8, 550 P.2d, at 345.3
21
Petitioner also claimed that she was entitled to a "separate recovery under her § 1983 claim" because "she was deprived of her own constitutional rights" in that "her child's right to life, his right to freedom from physical abuse and intimidation, and his right to equal protection of the laws were violated." Ibid. In rejecting this claim, the court held that "(t)hese deprivations . . . are really those of her son" and that a § 1983 action did not lie for injuries to another. Petitioner could not "sue in her own right for the deprivations of her son's rights", such as his right to life. Ibid. The Colorado court thus treated petitioner's claim as a survivor's suit based on the deceased's cause of action, holding that § 1983 does not provide for such an action independently of state law.
22
Finally, the Colorado Supreme Court expressly rejected any notion that the State "directly attempt(ed) to restrict (petitioner's) own personal decisions relating to procreation, contraception, and child-rearing which are involved in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)." 191 Colo., at 9, 550 P.2d, at 345. While conceding that "the death of a family member represents a loss" to petitioner, the court held that the State had not interfered with her right to child rearing, and "s 1983 was not designed to compensate for these collateral losses resulting from injuries to others." Ibid. Accordingly, the rights of parents were sufficiently vindicated by the state statutory recovery of direct pecuniary losses resulting from the death of their children.
23
It is obvious from the proceedings in the Colorado courts that the dismissal of petitioner's § 1983 claim and the associated damages limitation ruling were unsuccessfully challenged in the Colorado Supreme Court on the grounds just mentioned. It also seems to me that these grounds were preserved by the petition for certiorari, which we granted and which presented the following questions:
24
"Where the black mother of a 15-year-old child who was intentionally shot and killed by a white policeman acting under the color of state law brings a suit in state court pursuant to 42 U.S.C. § 1983, what is the measure of damages? Particularly, can the state measure of damages cancel and displace an action brought pursuant to 42 U.S.C. § 1983?"
25
The questions "what is the measure of damages" in a § 1983 suit and "can a state measure of damages cancel and displace an action brought pursuant to § 1983" fairly pose the correctness of the Colorado Supreme Court rulings that (1) no § 1983 action exists independently of state law; (2) a survivor may not sue under § 1983 for injuries suffered by the deceased; and (3) the damages recoverable under § 1983 are limited by Colorado law to direct pecuniary loss and do not reach "collateral" injuries. These issues were addressed directly by the Colorado Supreme Court, and I doubt that that court misunderstood the scope of the litigation before it or reached and decided issues not fairly presented by the appeal.
26
Nor do I think that the oral argument, even when read in the majority's common-law pleading style, ineluctably supports any conclusion that petitioner has abandoned any of these claims. At oral argument, petitioner's claim as a parent was articulated several times: "a right to not have her child taken"; she was deprived of the "liberty to raise children"; she had the right "(t)o raise her child"; and the "constitutional violation was the infringement of her rights as a parent." Tr. of Oral Arg. 8-10. In light of these statements and similar ones throughout the oral argument it cannot be said that petitioner has abandoned her claim, expressly rejected by the Colorado Supreme Court, that § 1983 affords a remedy to petitioner in her capacity as a parent wholly independent of state law.
27
Similarly, petitioner's counsel made his view clear that even if the § 1983 action for the death of petitioner's child was dependent on state law, it was error to restrict petitioner's recovery to her direct pecuniary losses pursuant to the Colorado rule. Recovery should include, it was urged, damages for loss of a parent's own "civil rights" as well as punitive damages for the wrongful killing. Tr. of Oral Arg. 45.
28
Finally, it appears to me that petitioner has preserved her claim that § 1983 affords a survivor's action for the invasion of her child's right to life. Although petitioner's counsel seems to have characterized his claims in the state courts as being related solely to the mother's rights as a parent the Colorado Supreme Court understood them to consist in part of claims on behalf of the son and, as I have indicated, expressly held these claims not cognizable under § 1983. 191 Colo., at 8, 550 P.2d, at 345. At oral argument, counsel for petitioner conceded that he had not pressed his client's survivorship claim, apparently because he felt constrained by certain lower court opinions, since reversed or overruled, to articulate petitioner's claims in the Colorado courts in terms of the mother's rights alone. But he made it clear that "in hindsight" he would assert the survivorship claim, citing Shaw v. Garrison, 545 F.2d 980 (CA5 1977), for the proposition that independently of state law a § 1983 action survives the death of the victim. Tr. of Oral Arg. 17-18, 20, 22. Because the Colorado Supreme Court understood petitioner's submission as including a survivorship claim based on injury to the son and because the issue is fairly presented by petitioner's petition for certiorari, it is hypertechnical to hold that the survivorship issue is not here. Of course, the Court is not bound by concessions of counsel in oral argument as to whether a legal issue is open in this Court. Cf. Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 368 n. 3, 97 S.Ct. 582, 586, 50 L.Ed.2d 550 (1977).
29
In any event, in light of the record, I am at a loss to understand the basis for dismissing the writ of certiorari with respect to the other questions expressly raised or fairly subsumed in the questions presented in the petition. These issues are important and we should decide them. I respectfully dissent from the judgment of dismissal.
1
Section 13-21-202:
"When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured."
2
The jury had been instructed that damages in a wrongful-death action were limited to net pecuniary loss, see Herbertson v. Russell, 150 Colo. 110, 371 P.2d 422 (1962). This loss is the financial loss sustained by petitioner as a result of the death of her son, and would include the value of any services that he might have rendered and earnings he might have made while a minor, as well as any support he might have provided after becoming an adult, less the expenses petitioner would have incurred in raising him. The award apparently included, in this case, funeral expenses. The Supreme Court of Colorado upheld the instructions and the award, 191 Colo., at 3 n. 1, 550 P.2d, at 341 n. 1. These issues, of course, are not before us except as they might bear on petitioner's § 1983 claim.
3
See n. 2, supra.
4
Petitioner explicitly acknowledged at oral argument that she had not brought a claim for vindication of her son's rights; in essence, an action on his behalf. See Tr. of Oral Arg. 6, 17-18, 20. This is clear, as well, from the manner in which the complaint is drafted, as well as the parties' perception that the closest available state statute is the Colorado wrongful-death statute, rather than the Colorado survivorship statute, Colo.Rev.Stat.Ann. § 13-20-101 (1973). See Tr. of Oral Arg. 17-18, 20. See generally C. McCormick, Law of Damages 336 (1935); 2 F. Harper & F. James, The Law of Torts §§ 24.1-24.3 (1956). Petitioner sued individually as the mother of the decedent and not as the administratrix of the decedent's estate.
5
Petitioner apparently relies on Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and its progeny as the basis for her asserted constitutional deprivation. As articulated at oral argument, petitioner's contention appears to be: "(T)his Court has held on several occasions that a parent has a constitutional right to raise their child, and that child cannot be taken from them without the due process of law." Tr. of Oral Arg. 4-5.
6
Her complaint alleged that she was deprived of
"a. Her child's right to life;
"b. The right to her child's freedom from physical abuse, coercion, intimidation, and physical death; and
"c. Her right to her children's equal protection of the laws." App. 3.
Nowhere does she allege her asserted constitutional right to raise her child.
7
The court was referring to the assertions in the complaint, quoted in n. 6, supra. It then raised, and rejected, another argument in the following passage:
"Furthermore, the state did not directly attempt to restrict her own personal decisions relating to procreation, contraception, and child-rearing which are involved in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Although the death of a family member represents a loss to her, we, nonetheless, are of the opinion that § 1983 was not designed to compensate for these collateral losses resulting from injuries to others." 191 Colo., at 9, 550 P.2d, at 345.
8
Petitioner rejects the view that the claims are based on the same injuries: "The key is that the remedy . . . is for the deprivation of civil rights not for wrongful death." Reply Brief for Plaintiff-Appellant in the Supreme Court of Colorado 7.
1
At least one case in this Court has involved such an action. In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), personal representatives of students killed in the 1970 slayings at Kent State University brought a § 1983 action alleging the wrongful killing of the victims. The Court held that state officials were not absolutely immune from such suits. Although the question whether the personal representatives' action could be maintained under § 1983 was not before the Court, it did not disapprove of such actions in remanding the case to the lower courts.
2
Petitioner's first two claims for relief were grounded on state law. The third claim for relief stated:
"During all times mentioned in this Complaint, Douglas Hildebrant while acting under color of law, intentionally deprived the Plaintiff of her rights, security and liberty secured to her by the Constitution of the United States, including but not limited to:
"a. Her child's right to life;
"b. The right to her child's freedom from physical abuse, coercion, intimidation, and physical death; and
"c. Her right to her children's equal protection of the laws." App. 3.
3
The Colorado Supreme Court was emphatic: "Though the United States Supreme Court has ruled that federal wrongful death remedies impliedly exist in some areas of the law, we do not believe that such a remedy exists with § 1983 claims. This belief is based on the perceived Congressional intent not to pre-empt the states' carefully wrought wrongful death remedies, the adequacy in a death case of the state remedies to vindicate a civil rights violation, and the overwhelming acceptance of such state remedies in the federal courts." 191 Colo., at 9, 550 P.2d, at 345 (footnotes omitted).
| 89
|
432 U.S. 98
97 S.Ct. 2243
53 L.Ed.2d 140
John R. MANSON, Commissioner of Correction of Connecticut, Petitioner,v.Nowell A. BRATHWAITE.
No. 75-871.
Argued Nov. 29, 1976.
Decided June 16, 1977.
Syllabus
Glover, a trained Negro undercover state police officer, purchased heroin from a seller through the open doorway of an apartment while standing for two or three minutes within two feet of the seller in a hallway illuminated by natural light. A few minutes later Glover described the seller to another police officer as being "a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build." The other police officer, suspecting from the description that respondent might be the seller, left a police photograph of respondent at the office of Glover, who viewed it two days later and identified it as the picture of the seller. In a Connecticut court, respondent was charged with, and convicted of, possession and sale of heroin, and at his trial, held some eight months after the crime, the photograph was received in evidence without objection and Glover testified that there was no doubt that the person shown in the photograph was respondent and also made a positive in-court identification without objection. After the Connecticut Supreme Court affirmed the conviction, respondent filed a petition for habeas corpus in Federal District Court, alleging that the admission of the identification testimony at his state trial deprived him of due process of law in violation of the Fourteenth Amendment. The District Court dismissed the petition, but the Court of Appeals reversed, holding that evidence as to the photograph should have been excluded, regardless of reliability, because the examination of the single photograph was unnecessary and suggestive, and that the identification was unreliable in any event. Held: The Due Process Clause of the Fourteenth Amendment does not compel the exclusion of the identification evidence. Pp. 109-117.
(a) Reliability is the linchpin in determining the admissibility of identification testimony for confrontations occurring both prior to and after Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, wherein it was held that the determination depends on the "totality of the circumstances." Id., at 302, 87 S.Ct., at 1972. The factors to be weighed against the corrupting effect of the suggestive procedure in assessing reliability are set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, and include the witness' opportunity to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Pp. 109-114.
(b) Under the totality of the circumstances in this case, there does not exist "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. Glover, no casual observer but a trained police officer, had a sufficient opportunity to view the suspect, accurately described him, positively identified respondent's photograph as that of the suspect, and made the photograph identification only two days after the crime. Pp. 114-117.
527 F.2d 363, reversed.
Bernard D. Gaffney, New Britain, Conn., for petitioner.
David S. Golub, Stamford, Conn., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the issue as to whether the Due Process Clause of the Fourteenth Amendment compels the exclusion, in a state criminal trial, apart from any consideration of reliability, of pretrial identification evidence obtained by a police procedure that was both suggestive and unnecessary. This Court's decisions in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), are particularly implicated.
2
* Jimmy D. Glover, a full-time trooper of the Connecticut State Police, in 1970 was assigned to the Narcotics Division in an undercover capacity. On May 5 of that year, about 7:45 p. m., e.d.t., and while there was still daylight, Glover and Henry Alton Brown, an informant, went to an apartment building at 201 Westland, in Hartford, for the purpose of purchasing narcotics from "Dickie Boy" Cicero, a known narcotics dealer. Cicero, it was thought, lived on the third floor of that apartment building. Tr. 45-46, 68.1 Glover and Brown entered the building, observed by back-up Officers D'Onofrio and Gaffey, and proceeded by stairs to the third floor. Glover knocked at the door of one of the two apartments served by the stairway.2 The area was illuminated by natural light from a window in the third floor hallway. Id., at 27-28. The door was opened 12 to 18 inches in response to the knock. Glover observed a man standing at the door and, behind him, a woman. Brown identified himself. Glover then asked for "two things" of narcotics. Id., at 29. The man at the door held out his hand, and Glover gave him two $10 bills. The door closed. Soon the man returned and handed Glover two glassine bags.3 While the door was open, Glover stood within two feet of the person from whom he made the purchase and observed his face. Five to seven minutes elapsed from the time the door first opened until it closed the second time. Id., at 30-33.
3
Glover and Brown then left the building. This was about eight minutes after their arrival. Glover drove to headquarters where he described the seller to D'Onofrio and Gaffey. Glover at that time did not know the identity of the seller. Id., at 36. He described him as being "a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. He was wearing at the time blue pants and a plaid shirt." Id., at 36-37. D'Onofrio, suspecting from this description that respondent might be the seller, obtained a photograph of respondent from the Records Division of the Hartford Police Department. He left it at Glover's office. D'Onofrio was not acquainted with respondent personally but did know him by sight and had seen him "(s)everal times" prior to May 5. Id., at 63-65. Glover, when alone, viewed the photograph for the first time upon his return to headquarters on May 7; he identified the person shown as the one from whom he had purchased the narcotics. Id., at 36-38.
4
The toxicological report on the contents of the glassine bags revealed the presence of heroin. The report was dated July 16, 1970. Id., at 75-76.
5
Respondent was arrested on July 27 while visiting at the apartment of a Mrs. Ramsey on the third floor of 201 Westland. This was the apartment at which the narcotics sale had taken place on May 5.4
6
Respondent was charged, in a two-count information, with possession and sale of heroin, in violation of Conn.Gen.Stat. (Rev. of 1958, as amended in 1969), §§ 19-481a and 19-480a (1977).5 At his trial in January 1971, the photograph from which Glover had identified respondent was received in evidence without objection on the part of the defense. Tr. 38. Glover also testified that, although he had not seen respondent in the eight months that had elapsed since the sale, "there (was) no doubt whatsoever" in his mind that the person shown on the photograph was respondent. Id., at 41-42. Glover also made a positive in-court identification without objection. Id., at 37-38.
7
No explanation was offered by the prosecution for the failure to utilize a photographic array or to conduct a lineup.
8
Respondent, who took the stand in his own defense, testified that on May 5, the day in question, he had been ill at his Albany Avenue apartment ("a lot of back pains, muscle spasms . . . a bad heart . . . high blood pressure . . . neuralgia in my face, and sinus," id., at 106), and that at no time on that particular day had he been at 201 Westland. Id., at 106, 113-114. His wife testified that she recalled, after her husband had refreshed her memory, that he was home all day on May 5. Id., at 164-165. Doctor Wesley M. Vietzke, an internist and assistant professor of medicine at the University of Connecticut, testified that respondent had consulted him on April 15, 1970, and that he took a medical history from him, heard his complaints about his back and facial pain, and discovered that he had high blood pressure. Id., at 129-131. The physician found respondent, subjectively, "in great discomfort." Id., at 135. Respondent in fact underwent surgery for a herniated disc at L5 and S1 on August 17. Id., at 157.
9
The jury found respondent guilty on both counts of the information. He received a sentence of not less than six nor more than nine years. His conviction was affirmed per curiam by the Supreme Court of Connecticut. State v. Brathwaite, 164 Conn. 617, 325 A.2d 284 (1973). That court noted the absence of an objection to Glover's in-court identification and concluded that respondent "has not shown that substantial injustice resulted from the admission of this evidence." Id., at 619, 325 A.2d, at 285. Under Connecticut law, substantial injustice must be shown before a claim of error not made or passed on by the trial court will be considered on appeal. Ibid.
10
Fourteen months later, respondent filed a petition for habeas corpus in the United States District Court for the District of Connecticut. He alleged that the admission of the identification testimony at his state trial deprived him of due process of law to which he was entitled under the Fourteenth Amendment. The District Court, by an unreported written opinion based on the court's review of the state trial transcript,6 dismissed respondent's petition. On appeal, the United States Court of Appeals for the Second Circuit reversed, with instructions to issue the writ unless the State gave notice of a desire to retry respondent and the new trial occurred within a reasonable time to be fixed by the District Judge.7 527 F.2d 363 (1975).
11
In brief summary, the court felt that evidence as to the photograph should have been excluded, regardless of reliability, because the examination of the single photograph was unnecessary and suggestive. And, in the court's view, the evidence was unreliable in any event. We granted certiorari. 425 U.S. 957, 96 S.Ct. 1737, 48 L.Ed.2d 202 (1976).
II
12
Stovall v. Denno, supra, decided in 1967, concerned a petitioner who had been convicted in a New York court of murder. He was arrested the day following the crime and was taken by the police to a hospital where the victim's wife, also wounded in the assault, was a patient. After observing Stovall and hearing him speak, she identified him as the murderer. She later made an in-court identification. On federal habeas, Stovall claimed the identification testimony violated his Fifth, Sixth, and Fourteenth Amendment rights. The District Court dismissed the petition, and the Court of Appeals, en banc, affirmed. This Court also affirmed. On the identification issue, the Court reviewed the practice of showing a suspect singly for purposes of identification, and the claim that this was so unnecessarily suggestive and conducive to irreparable mistaken identification that it constituted a denial of due process of law. The Court noted that the practice "has been widely condemned," 388 U.S., at 302, 87 S.Ct., at 1972, but it concluded that "a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it." Ibid. In that case, showing Stovall to the victim's spouse "was imperative." The Court then quoted the observations of the Court of Appeals, 2 Cir., 355 F.2d 731, 735 (CA2 1966), to the effect that the spouse was the only person who could possibly exonerate the accused; that the hospital was not far from the courthouse and jail; that no one knew how long she might live; that she was not able to visit the jail; and that taking Stovall to the hospital room was the only feasible procedure, and, under the circumstances, " 'the usual police station line-up . . . was out of the question.' " 388 U.S., at 302, 87 S.Ct., at 1972-1973.
13
Neil v. Biggers, supra, decided in 1972, concerned a respondent who had been convicted in a Tennessee court of rape, on evidence consisting in part of the victim's visual and voice identification of Biggers at a station-house showup seven months after the crime. The victim had been in her assailant's presence for some time and had directly observed him indoors and under a full moon outdoors. She testified that she had "no doubt" that Biggers was her assailant. She previously had given the police a description of the assailant. She had made no identification of others presented at previous showups, lineups, or through photographs. On federal habeas, the District Court held that the confrontation was so suggestive as to violate due process. The Court of Appeals affirmed. This Court reversed on that issue, and held that the evidence properly had been allowed to go to the jury. The Court reviewed Stovall and certain later cases where it had considered the scope of due process protection against the admission of evidence derived from suggestive identification procedures, namely, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); and Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).8 The Court concluded that general guidelines emerged from these cases "as to the relationship between suggestiveness and misidentification." The "admission of evidence of a showup without more does not violate due process." 409 U.S., at 198, 93 S.Ct., at 382. The Court expressed concern about the lapse of seven months between the crime and the confrontation and observed that this "would be a seriously negative factor in most cases." Id., at 201, 93 S.Ct., at 383. The "central question," however, was "whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Id., at 199, 93 S.Ct., at 382. Applying that test, the Court found "no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury." Id., at 201, 93 S.Ct., at 383.
14
Biggers well might be seen to provide an unambiguous answer to the question before us: The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability.9 In one passage, however, the Court observed that the challenged procedure occurred pre-Stovall and that a strict rule would make little sense with regard to a confrontation that preceded the Court's first indication that a suggestive procedure might lead to the exclusion of evidence. Id., at 199, 93 S.Ct., at 382. One perhaps might argue that, by implication, the Court suggested that a different rule could apply post-Stovall. The question before us, then, is simply whether the Biggers analysis applies to post-Stovall confrontations as well to those pre-Stovall.
III
15
In the present case the District Court observed that the "sole evidence tying Brathwaite to the possession and sale of the heroin consisted in his identifications by the police undercover agent, Jimmy Glover." App. to Pet. for Cert. 6a. On the constitutional issue, the court stated that the first inquiry was whether the police used an impermissibly suggestive procedure in obtaining the out-of-court identification. If so, the second inquiry is whether, under all the circumstances, that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Id., at 9a. Biggers and Simmons were cited. The court noted that in the Second Circuit, its controlling court, it was clear that "this type of identification procedure (display of a single photograph) is impermissibly suggestive," and turned to the second inquiry. App. to Pet. for Cert. 9a. The factors Biggers specified for consideration were recited and applied. The court concluded that there was no substantial likelihood of irreparable misidentification. It referred to the facts: Glover was within two feet of the seller. The duration of the confrontation was at least a "couple of minutes." There was natural light from a window or skylight and there was adequate light to see clearly in the hall. Glover "certainly was paying attention to identify the seller." Id., at 10a. He was a trained police officer who realized that later he would have to find and arrest the person with whom he was dealing. He gave a detailed description to D'Onofrio. The reliability of this description was supported by the fact that it enabled D'Onofrio to pick out a single photograph that was thereafter positively identified by Glover. Only two days elapsed between the crime and the photographic identification. Despite the fact that another eight months passed before the in-court identification, Glover had "no doubt" that Brathwaite was the person who had sold him heroin.
16
The Court of Appeals confirmed that the exhibition of the single photograph to Glover was "impermissibly suggestive," 527 F.2d, at 366, and felt that, in addition, "it was unnecessarily so." Id., at 367. There was no emergency and little urgency. The court said that prior to the decision in Biggers, except in cases of harmless error, "a conviction secured as the result of admitting an identification obtained by impermissibly suggestive and unnecessary measures could not stand." Ibid. It noted what it felt might be opposing inferences to be drawn from passages in Biggers, but concluded that the case preserved the principle "requiring the exclusion of identifications resulting from 'unnecessarily suggestive confrontation' " in post-Stovall situations. 527 F.2d, at 368. The court also concluded that for post-Stovall identifications, Biggers had not changed the existing rule. Thus: "Evidence of an identification unnecessarily obtained by impermissibly suggestive means must be excluded under Stovall . . . . No rules less stringent than these can force police administrators and prosecutors to adopt procedures that will give fair assurance against the awful risks of misidentification." 527 F.2d, at 371. Finally, the court said, even if this conclusion were wrong, the writ, nevertheless, should issue. It took judicial notice that on May 5, 1970, sunset at Hartford was at 7:53 p. m. It characterized Glover's duty as an undercover agent as one "to cause arrests to be made," and his description of the suspect as one that "could have applied to hundreds of Hartford black males." Ibid. The in-court identification had "little meaning," for Brathwaite was at the counsel table. The fact that respondent was arrested in the very apartment where the sale was made was subject to a "not implausible" explanation from the respondent, "although evidently not credited by the jury." And the court was troubled by "the long and unexplained delay" in the arrest. It was too great a danger that the respondent was convicted because he was a man D'Onofrio had previously observed near the scene, was thought to be a likely offender, and was arrested when he was known to be in Mrs. Ramsey's apartment, rather than because Glover "really remembered him as the seller." Id., at 371-372.
IV
17
Petitioner at the outset acknowledges that "the procedure in the instant case was suggestive (because only one photograph was used) and unnecessary" (because there was no emergency or exigent circumstance). Brief for Petitioner 10; Tr. of Oral Arg. 7. The respondent, in agreement with the Court of Appeals, proposes a per se rule of exclusion that he claims is dictated by the demands of the Fourteenth Amendment's guarantee of due process. He rightly observes that this is the first case in which this Court has had occasion to rule upon strictly post-Stovall out-of-court identification evidence of the challenged kind.
18
Since the decision in Biggers, the Courts of Appeals appear to have developed at least two approaches to such evidence. See Pulaski, Neil v. Biggers : The Supreme Court Dismantles the Wade Trilogy's Due Process Protection, 26 Stan.L.Rev. 1097, 1111-1114 (1974). The first, or per se approach, employed by the Second Circuit in the present case, focuses on the procedures employed and requires exclusion of the out-of-court identification evidence, without regard to reliability, whenever it has been obtained through unnecessarily suggested confrontation procedures.10 The justifications advanced are the elimination of evidence of uncertain reliability, deterrence of the police and prosecutors, and the stated "fair assurance against the awful risks of misidentification." 527 F.2d, at 371. See Smith v. Coiner, 473 F.2d 877, 882 (CA4), cert. denied sub nom. Wallace v. Smith, 414 U.S. 1115, 94 S.Ct. 848, 38 L.Ed.2d 743 (1973).
19
The second, or more lenient, approach is one that continues to rely on the totality of the circumstances. It permits the admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability. Its adherents feel that the per se approach is not mandated by the Due Process Clause of the Fourteenth Amendment. This second approach, in contrast to the other, is ad hoc and serves to limit the societal costs imposed by a sanction that excludes relevant evidence from consideration and evaluation by the trier of fact. See United States ex rel. Kirby v. Sturges, 510 F.2d 397, 407-408 (CA7) (opinion by Judge, now Mr. Justice, Stevens), cert. denied, 421 U.S. 1016, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975); Stanley v. Cox, 486 F.2d 48 (CA4 1973), cert. denied sub nom. Stanley v. Slayton, 416 U.S. 958, 94 S.Ct. 1975, 40 L.Ed.2d 309 (1974).11
20
Mr. Justice Stevens, in writing for the Seventh Circuit in Kirby, supra, observed: "There is surprising unanimity among scholars in regarding such a rule (the per se approach) as essential to avoid serious risk of miscarriage of justice." 510 F.2d, at 405. He pointed out that well-known federal judges have taken the position that "evidence of, or derived from, a showup identification should be inadmissible unless the prosecutor can justify his failure to use a more reliable identification procedure." Id., at 406. Indeed, the ALI Model Code of Pre-Arraignment Procedure §§ 160.1 and 160.2 (1975) (hereafter Model Code), frowns upon the use of a showup or the display of only a single photograph.
21
The respondent here stresses the same theme and the need for deterrence of improper identification practice, a factor he regards as pre-eminent. Photographic identification, it is said, continues to be needlessly employed. He notes that the legislative regulation "the Court had hoped (United States v.) Wade (, 388 U.S. 218, 239, 87 S.Ct. 1926, 1938-1939, 18 L.Ed.2d 1149 (1967),) would engender," Brief for Respondent 15, has not been forthcoming. He argues that a totality rule cannot be expected to have a significant deterrent impact; only a strict rule of exclusion will have direct and immediate impact on law enforcement agents. Identification evidence is so convincing to the jury that sweeping exclusionary rules are required. Fairness of the trial is threatened by suggestive confrontation evidence, and thus, it is said, an exclusionary rule has an established constitutional predicate.
22
There are, of course, several interests to be considered and taken into account. The driving force behind 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) (right to counsel at a post-indictment line-up), and Stovall, all decided on the same day, was the Court's concern with the problems of eyewitness identification. Usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. The witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police. Thus, Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability. It must be observed that both approaches before us are responsive to this concern. The per se rule, however, goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant.
23
The second factor is deterrence. Although the per se approach has the more significant deterrent effect, the totality approach also has an influence on police behavior. The police will guard against unnecessarily suggestive procedures under the totality rule, as well as the per se one, for fear that their actions will lead to the exclusion of identifications as unreliable.12
24
The third factor is the effect on the administration of justice. Here the per se approach suffers serious drawbacks. Since it denies the trier reliable evidence, it may result, on occasion, in the guilty going free. Also, because of its rigidity, the per se approach may make error by the trial judge more likely than the totality approach. And in those cases in which the admission of identification evidence is error under the per se approach but not under the totality approach cases in which the identification is reliable despite an unnecessarily suggestive identification procedure reversal is a Draconian sanction.13 Certainly, inflexible rules of exclusion that may frustrate rather than promote justice have not been viewed recently by this Court with unlimited enthusiasm. See, for example, the several opinions in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). See also United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976).
25
It is true, as has been noted, that the Court in Biggers referred to the pre-Stovall character of the confrontation in that case. 409 U.S., at 199, 93 S.Ct., at 382. But that observation was only one factor in the judgmental process. It does not translate into a holding that post-Stovall confrontation evidence automatically is to be excluded.
26
The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment. See United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752 (1977); Rochin v. California, 342 U.S. 165, 170-172, 72 S.Ct. 205, 208-209, 96 L.Ed. 183 (1952). Stovall, with its reference to "the totality of the circumstances," 388 U.S., at 302, 87 S.Ct., at 1972, and Biggers, with its continuing stress on the same totality, 409 U.S., at 199, 93 S.Ct., at 382, did not, singly or together, establish a strict exclusionary rule or new standard of due process. Judge Leventhal, although speaking pre-Biggers and of a pre-Wade situation, correctly has described Stovall as protecting an evidentiary interest and, at the same time, as recognizing the limited extent of that interest in our adversary system.14 sWe therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers. 409 U.S., at 199-200, 93 S.Ct., at 382. These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
V
27
We turn, then, to the facts of this case and apply the analysis:
28
1. The opportunity to view. Glover testified that for two to three minutes he stood at the apartment door, within two feet of the respondent. The door opened twice, and each time the man stood at the door. The moments passed, the conversation took place, and payment was made. Glover looked directly at his vendor. It was near sunset, to be sure, but the sun had not yet set, so it was not dark or even dusk or twilight. Natural light from outside entered the hallway through a window. There was natural light, as well, from inside the apartment.
29
2. The degree of attention. Glover was not a casual or passing observer, as is so often the case with eyewitness identification. Trooper Glover was a trained police officer on duty and specialized and dangerous duty when he called at the third floor of 201 Westland in Hartford on May 5, 1970. Glover himself was a Negro and unlikely to perceive only general features of "hundreds of Hartford black males," as the Court of Appeals stated. 527 F.2d, at 371. It is true that Glover's duty was that of ferreting out narcotics offenders and that he would be expected in his work to produce results. But it is also true that, as a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial.
30
3. The accuracy of the description. Glover's description was given to D'Onofrio within minutes after the transaction. It included the vendor's race, his height, his build, the color and style of his hair, and the high cheekbone facial feature. It also included clothing the vendor wore. No claim has been made that respondent did not possess the physical characteristics so described. D'Onofrio reacted positively at once. Two days later, when Glover was alone, he viewed the photograph D'Onofrio produced and identified its subject as the narcotics seller.
31
4. The witness' level of certainty. There is no dispute that the photograph in question was that of respondent. Glover, in response to a question whether the photograph was that of the person from whom he made the purchase, testified: "There is no question whatsoever." Tr. 38. This positive assurance was repeated. Id., at 41-42.
32
5. The time between the crime and the confrontation. Glover's description of his vendor was given to D'Onofrio within minutes of the crime. The photographic identification took place only two days later. We do not have here the passage of weeks or months between the crime and the viewing of the photograph.
33
These indicators of Glover's ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself. Although identifications arising from single-photograph displays may be viewed in general with suspicion, see Simmons v. United States, 390 U.S., at 383, 88 S.Ct., at 970-971, we find in the instant case little pressure on the witness to acquiesce in the suggestion that such a display entails. D'Onofrio had left the photograph at Glover's office and was not present when Glover first viewed it two days after the event. There thus was little urgency and Glover could view the photograph at his leisure. And since Glover examined the photograph alone, there was no coercive pressure to make an identification arising from the presence of another. The identification was made in circumstances allowing care and reflection.
34
Although it plays no part in our analysis, all this assurance as to the reliability of the identification is hardly undermined by the facts that respondent was arrested in the very apartment where the sale had taken place, and that he acknowledged his frequent visits to that apartment.15
35
Surely, we cannot say that under all the circumstances of this case there is "a very substantial likelihood of irreparable misidentification." Id., at 384, 88 S.Ct., at 971. Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.
36
Of course, it would have been better had D'Onofrio presented Glover with a photographic array including "so far as practicable . . . a reasonable number of persons similar to any person then suspected whose likeness is included in the array." Model Code, § 160.2(2). The use of that procedure would have enhanced the force of the identification at trial and would have avoided the risk that the evidence would be excluded as unreliable. But we are not disposed to view D'Onofrio's failure as one of constitutional dimension to be enforced by a rigorous and unbending exclusionary rule. The defect, if there be one, goes to weight and not to substance.16
37
We conclude that the criteria laid down in Biggers are to be applied in determining the admissibility of evidence offered by the prosecution concerning a post-Stovall identification, and that those criteria are satisfactorily met and complied with here.
38
The judgment of the Court of Appeals is reversed.
39
It is so ordered.
40
Mr. Justice STEVENS, concurring.
41
While I join the Court's opinion, I would emphasize two points.
42
First, as I indicated in my opinion in United States ex rel. Kirby v. Sturges, 510 F.2d 397, 405-406 (CA7 1975), the arguments in favor of fashioning new rules to minimize the danger of convicting the innocent on the basis of unreliable eyewitness testimony carry substantial force. Nevertheless, for the reasons stated in that opinion, as well as those stated by the Court today. I am persuaded that this rulemaking function can be performed "more effectively by the legislative process than by a somewhat clumsy judicial fiat," id., at 408, and that the Federal Constitution does not foreclose experimentation by the States in the development of such rules.
43
Second, in evaluating the admissibility of particular identification testimony it is sometimes difficult to put other evidence of guilt entirely to one side.* Mr. Justice BLACKMUN'S opinion for the Court carefully avoids this pitfall and correctly relies only on appropriate indicia of the reliability of the identification itself. Although I consider the factual question in this case extremely close, I am persuaded that the Court has resolved it properly.
44
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
45
Today's decision can come as no surprise to those who have been watching the Court dismantle the protections against mistaken eyewitness testimony erected a decade ago in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). But it is still distressing to see the Court virtually ignore the teaching of experience embodied in those decisions and blindly uphold the conviction of a defendant who may well be innocent.
46
* The magnitude of the Court's error can be seen by analyzing the cases in the Wade trilogy and the decisions following it. The foundation of the Wade trilogy was the Court's recognition of the "high incidence of miscarriage of justice" resulting from the admission of mistaken eyewitness identification evidence at criminal trials. United States v. Wade, supra, at 228, 87 S.Ct., at 1933. Relying on numerous studies made over many years by such scholars as Professor Wigmore and Mr. Justice Frankfurter, the Court concluded that "(t)he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." Ibid. It is, of course, impossible to control one source of such errors the faulty perceptions and unreliable memories of witnesses except through vigorously contested trials conducted by diligent counsel and judges. The Court in the Wade cases acted, however, to minimize the more preventable threat posed to accurate identification by "the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification." Ibid.
47
The Court did so in Wade and Gilbert v. California by prohibiting the admission at trial of evidence of pretrial confrontations at which an accused was not represented by counsel. Further protection was afforded by holding that an in-court identification following an uncounseled lineup was allowable only if the prosecution could clearly and convincingly demonstrate that it was not tainted by the constitutional violation. Only in this way, the Court held, could confrontations fraught with the danger of misidentification be made fairer, and could Sixth Amendment rights to assistance of counsel and confrontation of witnesses at trial be effectively preserved. The crux of the Wade decisions, however, was the unusual threat to the truth-seeking process posed by the frequent untrustworthiness of eyewitness identification testimony. This, combined with the fact that juries unfortunately are often unduly receptive to such evidence,1 is the fundamental fact of judicial experience ignored by the Court today.
48
Stovall v. Denno, while holding that the Wade prophylactic rules were not retroactive, was decided at the same time and reflects the same concerns about the reliability of identification testimony. Stovall recognized that, regardless of Sixth Amendment principles, "the conduct of a confrontation" may be "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny due process of law. 388 U.S., at 301-302, 87 S.Ct., at 1972. The pretrial confrontation in Stovall was plainly suggestive,2 and evidence of it was introduced at trial along with the witness' in-court identification. The Court ruled that there had been no violation of due process, however, because the unusual necessity for the procedure3 outweighed the danger of suggestion.
49
Stovall thus established a due process right of criminal suspects to be free from confrontations that, under all the circumstances, are unnecessarily suggestive. The right was enforceable by exclusion at trial of evidence of the constitutionally invalid identification. Comparison with Wade and Gilbert confirms this interpretation. Where their Sixth Amendment holding did not apply, Stovall found an analogous Fourteenth Amendment right to a lineup conducted in a fundamentally fair manner. This interpretation is reinforced by the Court's statement that "a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it." 388 U.S., at 302, 87 S.Ct., at 1972 (emphasis added). Significantly, several years later, Stovall was viewed in precisely the same way, even as the Court limited Wade and Gilbert to post-indictment confrontations: "The Due Process Clause . . . forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402." Kirby v. Illinois, 406 U.S. 682, 691, 92 S.Ct. 1877, 1883, 32 L.Ed.2d 411 (1972) (emphasis added).4
50
The development of due process protections against mistaken identification evidence, begun in Stovall, was continued in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). There, the Court developed a different rule to deal with the admission of in-court identification testimony that the accused claimed had been fatally tainted by a previous suggestive confrontation. In Simmons, the exclusionary effect of Stovall had already been accomplished, since the prosecution made no use of the suggestive confrontation. Simmons, therefore, did not deal with the constitutionality of the pretrial identification procedure. The only question was the impact of the Due Process Clause on an in-court identification that was not itself unnecessarily suggestive. Simmons held that due process was violated by the later identification if the pretrial procedure had been "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S., at 384, 88 S.Ct., at 971. This test focused, not on the necessity for the challenged pretrial procedure, but on the degree of suggestiveness that it entailed. In applying this test, the Court understandably considered the circumstances surrounding the witnesses' initial opportunity to view the crime. Finding that any suggestion in the pretrial confrontation had not affected the fairness of the in-court identification, Simmons rejected petitioner's due process attack on his conviction.
51
Again, comparison with the Wade cases is instructive. The inquiry mandated by Simmons is similar to the independent-source test used in Wade where an in-court identification is sought following an uncounseled lineup. In both cases, the issue is whether the witness is identifying the defendant solely on the basis of his memory of events at the time of the crime, or whether he is merely remembering the person he picked out in a pretrial procedure. Accordingly, in both situations, the relevant inquiry includes factors bearing on the accuracy of the witness' identification, including his opportunity to view the crime.
52
Thus, Stovall and Simmons established two different due process tests for two very different situations. Where the prosecution sought to use evidence of a questionable pretrial identification, Stovall required its exclusion, because due process had been violated by the confrontation, unless the necessity for the unduly suggestive procedure outweighed its potential for generating an irreparably mistaken identification. The Simmons test, on the other hand, was directed to ascertaining due process violations in the introduction of in-court identification testimony that the defendant claimed was tainted by pretrial procedures. In the latter situation, a court could consider the reliability of the identification under all the circumstances.5
53
This distinction between Stovall and Simmons was preserved in two succeeding cases. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), like Stovall, involved both unduly suggestive pretrial procedures, evidence of which was introduced at trial, and a tainted in-court identification. Accordingly, Foster applied the Stovall test, 394 U.S., at 442, 89 S.Ct., at 1128, and held that the police "procedure so undermined the reliability of the eyewitness identification as to violate due process." Id., at 443, 89 S.Ct., at 1129 (emphasis added). In contrast, in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), where the witness' pretrial identification was not used to bolster his in-court identification, the plurality opinion applied the test enunciated in Simmons. It concluded that an in-court identification did not violate due process because it did not stem from an allegedly suggestive lineup.
54
The Court inexplicably seemed to erase the distinction between Stovall and Simmons situations in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In Biggers there was a pretrial confrontation that was clearly both suggestive and unnecessary.6 Evidence of this, together with an in-court identification, was admitted at trial. Biggers was, in short, a case plainly cast in the Stovall mold. Yet the Court, without explanation or apparent recognition of the distinction, applied the Simmons test. The Court stated: "(T)he primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S., at 384, 88 S.Ct., at 971. . . . It is the likelihood of misidentification which violates a defendant's right to due process. . . ." 409 U.S., at 198, 93 S.Ct., at 381-382. While this statement accurately describes the lesson of Simmons, it plainly ignores the teaching of Stovall and Foster that an unnecessarily suggestive pretrial confrontation itself violates due process.
55
But the Court did not simply disregard the due process analysis of Stovall. It went on to take the Simmons standard for assessing the constitutionality of an in-court identification " 'a very substantial likelihood of irreparable misidentification' " and transform it into the "standard for the admissibility of testimony concerning (an) out-of-court identification." 409 U.S., at 198, 93 S.Ct., at 381. It did so by deleting the word "irreparable" from the Simmons formulation. This metamorphosis could be accomplished, however, only by ignoring the fact that Stovall fortified only months earlier by Kirby v. Illinois, see supra, at 121, had established a test for precisely the same situation that focused on the need for the suggestive procedure. It is not surprising that commentators almost unanimously mourned the demise of Stovall in the Biggers decision.7
II
56
Apparently, the Court does not consider Biggers controlling in this case. I entirely agree, since I believe that Biggers was wrongly decided. The Court, however, concludes that Biggers is distinguishable because it, like the identification decisions that preceded it, involved a pre-Stovall confrontation, and because a paragraph in Biggers itself, 409 U.S., at 198-199, 93 S.Ct., at 381-382, seems to distinguish between pre- and post-Stovall confrontations. Accordingly, in determining the admissibility of the post-Stovall identification in this case, the Court considers two alternatives, a per se exclusionary rule and a totality-of-the circumstances approach. Ante, at 110-111. The Court weighs three factors in deciding that the totality approach, which is essentially the test used in Biggers, should be applied. Ante, at 111-113. In my view, the Court wrongly evaluates the impact of these factors.
57
First, the Court acknowledges that one of the factors, deterrence of police use of unnecessarily suggestive identification procedures, favors the per se rule. Indeed, it does so heavily, for such a rule would make it unquestionably clear to the police they must never use a suggestive procedure when a fairer alternative is available. I have no doubt that conduct would quickly conform to the rule.
58
Second, the Court gives passing consideration to the dangers of eyewitness identification recognized in the Wade trilogy. It concludes, however, that the grave risk of error does not justify adoption of the per se approach because that would too often result in exclusion of relevant evidence. In my view, this conclusion totally ignores the lessons of Wade. The dangers of mistaken identification are, as Stovall held, simply too great to permit unnecessarily suggestive identifications. Neither Biggers nor the Court's opinion today points to any contrary empirical evidence. Studies since Wade have only reinforced the validity of its assessment of the dangers of identification testimony.8 While the Court is "content to rely on the good sense and judgment of American juries," ante, at 116, the impetus for Stovall and Wade was repeated miscarriages of justice resulting from juries' willingness to credit inaccurate eyewitness testimony.
59
Finally, the Court errs in its assessment of the relative impact of the two approaches on the administration of justice. The Court relies most heavily on this factor, finding that "reversal is a Draconian sanction" in cases where the identification is reliable despite an unnecessarily suggestive procedure used to obtain it. Relying on little more than a strong distaste for "inflexible rules of exclusion," the Court rejects the per se test. Ante, at 113. In so doing, the Court disregards two significant distinctions between the per se rule advocated in this case and the exclusionary remedies for certain other constitutional violations.
60
First, the per se rule here is not "inflexible." Where evidence is suppressed, for example, as the fruit of an unlawful search, it may well be forever lost to the prosecution. Identification evidence, however, can by its very nature be readily and effectively reproduced. The in-court identification, permitted under Wade and Simmons if it has a source independent of an uncounseled or suggestive procedure, is one example. Similarly, when a prosecuting attorney learns that there has been a suggestive confrontation, he can easily arrange another lineup conducted under scrupulously fair conditions. Since the same factors are evaluated in applying both the Court's totality test and the Wade-Simmons independent-source inquiry, any identification which is "reliable" under the Court's test will support admission of evidence concerning such a fairly conducted lineup. The evidence of an additional, properly conducted confrontation will be more persuasive to a jury, thereby increasing the chance of a justified conviction where a reliable identification was tainted by a suggestive confrontation. At the same time, however, the effect of an unnecessarily suggestive identification which has no value whatsoever in the law enforcement process will be completely eliminated.
61
Second, other exclusionary rules have been criticized for preventing jury consideration of relevant and usually reliable evidence in order to serve interest unrelated to guilt or innocence, such as discouraging illegal searches or denial of counsel. Suggestively obtained eyewitness testimony is excluded, in contrast, precisely because of its unreliability and concomitant irrelevance. Its exclusion both protects the integrity of the truth-seeking function of the trial and discourages police use of needlessly inaccurate and ineffective investigatory methods.
62
Indeed, impermissibly suggestive identifications are not merely worthless law enforcement tools. They pose a grave threat to society at large in a more direct way than most governmental disobedience of the law, see Olmstead v. United States, 277 U.S. 438, 471, 485, 48 S.Ct. 564, 570, 575, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). For if the police and the public erroneously conclude, on the basis of an unnecessarily suggestive confrontation, that the right man has been caught and convicted, the real outlaw must still remain at large. Law enforcement has failed in its primary function and has left society unprotected from the depredations of an active criminal.
63
For these reasons, I conclude that adoption of the per se rule would enhance, rather than detract from, the effective administration of justice. In my view, the Court's totality test will allow seriously unreliable and misleading evidence to be put before juries. Equally important, it will allow dangerous criminals to remain on the streets while citizens assume that police action has given them protection. According to my calculus, all three of the factors upon which the Court relies point to acceptance of the per se approach.
64
Even more disturbing than the Court's reliance on the totality test, however, is the analysis it uses, which suggests a reinterpretation of the concept of due process of law in criminal cases. The decision suggests that due process violations in identification procedures may not be measured by whether the government employed procedures violating standards of fundamental fairness. By relying on the probable accuracy of a challenged identification, instead of the necessity for its use, the Court seems to be ascertaining whether the defendant was probably guilty. Until today, I had though that "Equal justice under law" meant that the existence of constitutional violations did not depend on the race, sex, religion, nationality, or likely guilt of the accused. The Due Process Clause requires adherence to the same high standard of fundamental fairness in dealing with every criminal defendant, whatever his personal characteristics and irrespective of the strength of the State's case against him. Strong evidence that the defendant is guilty should be relevant only to the determination whether an error of constitutional magnitude was nevertheless harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). By importing the question of guilt into the initial determination of whether there was a constitutional violation, the apparent effect of the Court's decision is to undermine the protection afforded by the Due Process Clause. "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." Oregon v. Mathiason, 429 U.S. 492, 499, 97 S.Ct. 711, 716, 50 L.Ed.2d 714 (1977) (Marshall, J., dissenting).9
III
65
Despite my strong disagreement with the Court over the proper standards to be applied in this case, I am pleased that its application of the totality test does recognize the continuing vitality of Stovall. In assessing the reliability of the identification, the Court mandates weighing "the corrupting effect of the suggestive identification itself" against the "indicators of (a witness') ability to make an accurate identification." Ante, at 114, 116. The Court holds, as Neil v. Biggers failed to, that a due process identification inquiry must take account of the suggestiveness of a confrontation and the likelihood that it led to misidentification, as recognized in Stovall and Wade. Thus, even if a witness did have an otherwise adequate opportunity to view a criminal, the later use of a highly suggestive identification procedure can render his testimony inadmissible. Indeed, it is my view that, assuming applicability of the totality test enunciated by the Court, the facts of the present case require that result.
66
I consider first the opportunity that Officer Glover had to view the suspect. Careful review of the record shows that he could see the heroin seller only for the time it took to speak three sentences of four or five short words, to hand over some money, Tr. 29-30, and later after the door reopened, to receive the drugs in return, id., at 30, 31-32. The entire face-to-face transaction could have taken as little as 15 or 20 seconds. But during this time, Glover's attention was not focused exclusively on the seller's face. He observed that the door was opened 12 to 18 inches id., at 29, that there was a window in the room behind the door, id., at 33, and, most importantly, that there was a woman standing behind the man, id., at 29, 30. Glover was, of course, also concentrating on the details of the transaction he must have looked away from the seller's face to hand him the money and receive the drugs. The observation during the conversation thus may have been as brief as 5 or 10 seconds.
67
As the Court notes, Glover was a police officer trained in and attentive to the need for making accurate identifications. Nevertheless, both common sense and scholarly study indicate that while a trained observer such as a police officer "is somewhat less likely to make an erroneous identification than the average untrained observer, the mere fact that he has been so trained is no guarantee that he is correct in a specific case. His identification testimony should be scrutinized just as carefully as that of the normal witness." Wall, supra, n. 1, at 14; see also Levine & Tapp, supra, n. 8, at 1088. Moreover, "identifications made by policemen in highly competitive activities, such as undercover narcotic agents . . ., should be scrutinized with special care." Wall, supra, n. 1, at 14. Yet it is just such a searching inquiry that the Court fails to make here.
68
Another factor on which the Court relies the witness' degree of certainty in making the identification is worthless as an indicator that he is correct.10 Even if Glover had been unsure initially about his identification of respondent's picture, by the time he was called at trial to present a key piece of evidence for the State that paid his salary, it is impossible to imagine his responding negatively to such questions as "is there any doubt in your mind whatsoever" that the identification was correct. Tr. 34, 41-42. As the Court noted in Wade: " 'It is a matter of common experience that, once a witness has picked out the accused at the (pretrial confrontation), he is not likely to go back on his word later on.' " 388 U.S., at 229, 87 S.Ct., at 1933, quoting Williams & Hammelmann, Identification Parades I, Crim.L.Rev. 479, 482 (1963).
69
Next, the Court finds that because the identification procedure took place two days after the crime, its reliability is enhanced. While such temporal proximity makes the identification more reliable than one occurring months later, the fact is that the greatest memory loss occurs within hours after an event. After that, the dropoff continues much more slowly.11 Thus, the reliability of an identification is increased only if it was made within several hours of the crime. If the time gap is any greater, reliability necessarily decreases.
70
Finally, the Court makes much of the fact that Glover gave a description of the seller to D'Onofrio shortly after the incident. Despite the Court's assertion that because "Glover himself was a Negro and unlikely to perceive only general features of 'hundreds of Hartford black males,' as the Court of Appeals stated," ante, at 115, the description given by Glover was actually no more than a general summary of the seller's appearance. See, ante, at 101. We may discount entirely the seller's clothing, for that was of no significance later in the proceeding. Indeed, to the extent that Glover noticed clothes, his attention was diverted from the seller's face. Otherwise, Glover merely described vaguely the seller's height, skin color, hairstyle, and build. He did say that the seller had "high cheekbones," but there is no other mention of facial features, nor even an estimate of age. Conspicuously absent is any indication that the seller was a native of the West Indies, certainly something which a member of the black community could immediately recognize from both appearance and accent.12
71
From all of this, I must conclude that the evidence of Glover's ability to make an accurate identification is far weaker than the Court finds it. In contrast, the procedure used to identify respondent was both extraordinarily suggestive and strongly conducive to error. In dismissing "the corrupting effect of the suggestive identification" procedure here, ante, at 116, the Court virtually grants the police license to convict the innocent. By displaying a single photograph of respondent to the witness Glover under the circumstances in this record almost everything that could have been done wrong was done wrong.
72
In the first place, there was no need to use a photograph at all. Because photos are static, two-dimensional, and often outdated, they are "clearly inferior in reliability" to corporeal procedures. Wall, supra, n. 1, at 70; People v. Gould, 54 Cal.2d 621, 631, 7 Cal.Rptr. 273, 278, 354 P.2d 865, 870 (1960). While the use of photographs is justifiable and often essential where the police have no knowledge of an offender's identity, the poor reliability of photos makes their use inexcusable where any other means of identification is available. Here, since Detective D'Onofrio believed that he knew the seller's identity, see ante, at 101, 115, further investigation without resort to a photographic showup was easily possible. With little inconvenience, a corporeal lineup including Brathwaite might have been arranged.13 Properly conducted, such a procedure would have gone far to remove any doubt about the fairness and accuracy of the identification.14
73
Worse still than the failure to use an easily available corporeal identification was the display to Glover of only a single picture, rather than a photo array. With good reason, such single-suspect procedures have "been widely condemned." Stovall v. Denno, 388 U.S., at 302, 87 S.Ct., at 1973. They give no assurance that the witness can identify the criminal from among a number of persons of similar appearance, surely the strongest evidence that there was no misidentification. In Simmons v. United States, our first decision involving photographic identification, we recognized the danger that a witness seeing a suggestively displayed picture will "retain in his memory the image of the photograph rather than of the person actually seen." 390 U.S., at 383-384, 88 S.Ct., at 971. "Subsequent identification of the accused then shows nothing except that the picture was a good likeness." Williams & Hammelmann, supra, n. 1, at 484. As Simmons warned, the danger of error is at its greatest when "the police display to the witness only the picture of a single individual . . . (and) is also heightened if the police indicate to the witness that they have other evidence that . . . the perso(n) pictured committed the crime." 390 U.S., at 383, 88 S.Ct., at 971. See also ALI, Model Code of Pre-Arraignment Procedure §§ 160.2(2), (5) (1975).
74
The use of a single picture (or the display of a single live suspect, for that matter) is a grave error, of course, because it dramatically suggests to the witness that the person shown must be the culprit. Why else would the police choose the person? And it is deeply ingrained in human nature to agree with the expressed opinions of others particularly others who should be more knowledgeable when making a difficult decision.15 In this case, moreover, the pressure was not limited to that inherent in the display of a single photograph. Glover, the identifying witness, was a state police officer on special assignment. He knew that D'Onofrio, an experienced Hartford narcotics detective, presumably familiar with local drug operations, believed respondent to be the seller. There was at work, then, both loyalty to another police officer and deference to a better-informed colleague.16 Finally, of course, there was Glover's knowledge that without an identification and arrest, government funds used to buy heroin had been wasted.
75
The Court discounts this overwhelming evidence of suggestiveness, however. It reasons that because D'Onofrio was not present when Glover viewed the photograph, there was "little pressure on the witness to acquiesce in the suggestion." Ante, at 116. That conclusion blinks psychological reality.17 There is no doubt in my mind that even in D'Onofrio's absence, a clear and powerful message was telegraphed to Glover as he looked at respondent's photograph. He was emphatically told that "this is the man," and he responded by identifying respondent then and at trial "whether or not he was in fact 'the man.' " Foster v. California, 394 U.S., at 443, 89 S.Ct., at 1129.18
76
I must conclude that this record presents compelling evidence that there was "a very substantial likelihood of misidentification" of respondent Brathwaite. The suggestive display of respondent's photograph to the witness Glover likely erased any independent memory that Glover had retained of the seller from his barely adequate opportunity to observe the criminal.
IV
77
Since I agree with the distinguished panel of the Court of Appeals that the legal standard of Stovall should govern this case, but that even if it does not, the facts here reveal a substantial likelihood of misidentification in violation of respondent's right to due process of law, I would affirm the grant of habeas corpus relief. Accordingly, I dissent from the Court's reinstatement of respondent's conviction.
1
The references are to the transcript of the trial in the Superior Court of Hartford County, Conn. The United States District Court, on federal habeas, pursuant to agreement of the parties, Tr. of Oral Arg. 23, conducted no evidentiary hearing.
2
It appears that the door on which Glover knocked may not have been that of the Cicero apartment. Petitioner concedes, in any event, that the transaction effected "was with some other person than had been intended." Id., at 4.
3
This was Glover's testimony. Brown later was called as a witness for the prosecution. He testified on direct examination that, due to his then use of heroin, he had no clear recollection of the details of the incident. Tr. 81-82. On cross-examination, as in an interview with defense counsel the preceding day, he said that it was a woman who opened the door, received the money, and thereafter produced the narcotics. Id., at 84, 86-87. On redirect, he acknowledged that he was using heroin daily at the time, that he had had some that day, and that there was "an inability to recall and remember events." Id., at 88-89.
4
Respondent testified: "Lots of times I have been there before in that building." He also testified that Mrs. Ramsey was a friend of his wife, that her apartment was the only one in the building he ever visited, and that he and his family, consisting of his wife and five children, did not live there but at 453 Albany Avenue, Hartford. Id., at 111-113.
5
These statutes have since been amended in ways that do not affect the present litigation. See 1971 Conn.Pub.Acts 812, § 1; 1972 Conn.Pub.Acts 278, §§ 25 and 26; Conn.Pub.Acts 73-137, § 10; Conn.Pub.Acts 74-332, §§ 1 and 3; Conn.Pub.Acts 75-567, § 65.
6
Neither party submitted a request to the District Court for an independent factual hearing on respondent's claims. See n. 1, supra.
7
Although no objection was made in the state trial to the admission of the identification testimony and the photograph, the issue of their propriety as evidence was raised on the appeal to the Supreme Court of Connecticut. Petitioner has asserted no claims related to the failure of the respondent either to exhaust state remedies or to make contemporaneous, objections. The District Court and the Court of Appeals, each for a somewhat different reason, App. to Pet. for Cert. 7a-8a; 527 F.2d, at 366, concluded that the merits were properly before them. We are not inclined now to rule otherwise.
8
Simmons involved photographs, mostly group ones, shown to bank-teller victims who made in-court identifications. The Court discussed the "chance of misidentification," 390 U.S., at 383, 88 S.Ct., at 971; declined to prohibit the procedure "either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement," id., at 384, 88 S.Ct., at 971; and held that each case must be considered on its facts and that a conviction would be set aside only if the identification procedure "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Ibid. The out-of-court identification was not offered. Mr. Justice Black would have denied Simmons' due process claim as frivolous. Id., at 395-396, 88 S.Ct., at 977.
Foster concerned repeated confrontations between a suspect and the manager of an office that had been robbed. At a second lineup, but not at the first and not at a personal one-to-one confrontation, the manager identified the suspect. At trial he testified as to this and made an in-court identification. The Court reaffirmed the Stovall standard and then concluded that the repeated confrontations were so suggestive as to violate due process. The case was remanded for the state courts to consider the question of harmless error.
In Coleman a plurality of the Court was of the view that the trial court did not err when it found that the victim's in-court identifications did not stem from a lineup procedure so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. 399 U.S., at 5-6, 90 S.Ct., at 2001-2002.
9
Mr. Justice MARSHALL argues in dissent that our cases have "established two different due process tests for two very different situations." Post, at 122. Pretrial identifications are to be covered by Stovall, which is said to require exclusion of evidence concerning unnecessarily suggestive pretrial identifications without regard to reliability. In-court identifications, on the other hand, are to be governed by Simmons and admissibility turns on reliability. The Court's cases are sorted into one category or the other. Biggers, which clearly adopts the reliability of the identification as the guiding factor in the admissibility of both pretrial and in-court identifications, is condemned for mixing the two lines and for adopting a uniform rule.
Although it must be acknowledged that our cases are not uniform in their emphasis, they hardly suggest the formal structure the dissent would impose on them. If our cases truly established two different rules, one might expect at some point at least passing reference to the fact. There is none. And if Biggers departed so grievously from the past cases, it is surprising that there was not at least some mention of the point in Mr. Justice Brennan's dissent. In fact, the cases are not so readily sorted as the dissent suggests. Although Foster involved both in-court and out-of-court identifications, the Court seemed to apply only a single standard for both. And although Coleman involved only an in-court identification, the plurality cited Stovall for the guiding rule that the claim was to be assessed on the "totality of the surrounding circumstances." 399 U.S., at 4, 90 S.Ct., at 2000. Thus, Biggers is not properly seen as a departure from the past cases, but as a synthesis of them.
10
Although the per se approach demands the exclusion of testimony concerning unnecessarily suggestive identifications, it does permit the admission of testimony concerning a subsequent identification, including an in-court identification, if the subsequent identification is determined to be reliable. 527 F.2d, at 367. The totality approach, in contrast, is simpler: if the challenged identification is reliable, then testimony as to it and any identification in its wake is admissible.
11
The Fourth Circuit's then very recent decision in Smith v. Coiner, 473 F.2d 877 (1973), was described as one applying the second, or totality, test. 486 F.2d, at 55.
12
The interest in obtaining convictions of the guilty also urges the police to adopt procedures that show the resulting identification to be accurate. Suggestive procedures often will vitiate the weight of the evidence at trial and the jury may tend to discount such evidence. Cf. McGowan, Constitutional Interpretation and Criminal Identification, 12 Wm. & Mary L.Rev. 235, 241 (1970).
13
Unlike a warrantless search, a suggestive preindictment identification procedure does not in itself intrude upon a constitutionally protected interest. Thus, considerations urging the exclusion of evidence deriving from a constitutional violation do not bear on the instant problem. See United States ex rel. Kirby v. Sturges, 510 F.2d 397, 406 (CA 7 1975).
14
"In essence what the Stovall due process right protects is an evidentiary interest. . . .
"It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart the 'integrity' of the adversary process.
"Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi." Clemons v. United States, 133 U.S.App.D.C. 27, 48, 408 F.2d 1230, 1251 (1968) (concurring opinion) (footnote omitted), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).
15
Mrs. Ramsey was not a witness at the trial.
16
We are not troubled, as was the Court of Appeals, by the "long and unexplained delay" in respondent's arrest. 527 F.2d, at 372. That arrest took place on July 27. The toxicological report verifying the substance sold as heroin had issued only 11 days earlier, on July 16. Those 11 days after verification of the contents of the glassine bags do not constitute, for us, a "long" period. And with the positive toxicological report having been received within a fortnight, the arrest's delay perhaps is not "unexplained."
*
In this case, for example, the fact that the defendant was a regular visitor to the apartment where the drug transaction occurred tends to confirm his guilt. In the Kirby case, where the conviction was for robbery, the fact that papers from the victim's wallet were found in the possession of the defendant made it difficult to question the reliability of the identification. These facts should not, however, be considered to support the admissibility of eyewitness testimony when applying the criteria identified in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. Properly analyzed, however, such facts would be relevant to a question whether error, if any, in admitting identification testimony was harmless.
1
See, e.g., P. Wall, Eye-Witness Identification in Criminal Cases 19-23 (1965); N. Sobel, Eye-Witness Identification: Legal and Practical Problems, §§ 3.01, 3.02, 30 (1972); Hammelmann & Williams, Identification Parades II, Crim.L.Rev. 545, 550 (1963).
2
The accused, a Negro, was brought handcuffed by seven white police officers and employees of the District Attorney to the hospital room of the only witness to a murder. As the Court said of this encounter: "It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed to be guilty by the police. See Frankfurter, The Case of Sacco and Vanzetti 31-32." United States v. Wade, 388 U.S. 218, 234, 87 S.Ct. 1926, 1936, 18 L.Ed.2d 1149 (1967).
3
The police reasonably feared that the witness might die before any less suggestive confrontation could be arranged.
4
See also, McGowan, Constitutional Interpretation and Criminal Identification, 12 Wm. & Mary L.Rev. 235, 240 (1970).
If the test enunciated in Stovall permitted any consideration of the witness' opportunity to observe the offender at the time of the crime, it was only in the narrowly circumscribed context of ascertaining the extent to which the challenged procedure was "conducive to irreparable mistaken identification." It is noteworthy, however, that in applying its test in Stovall the Court did not advert to the significant circumstantial evidence of guilt, see United States ex rel. Stovall v. Denno, 335 F.2d 731, 733-734 (CA2 1966), nor discuss any factors bearing on the witness' opportunity to view the assailant.
5
Mr. Justice Harlan, writing for the Court in Simmons, acknowledged that there was a distinction between that case and Stovall. After describing the factual setting and the applicable due process test, he noted that "(t)his standard accords with our resolution of a similar issue in Stovall." 390 U.S., at 384, 88 S.Ct. at 971. He pointedly did not say that the cases were the same, nor did he rely on Stovall to set the standard.
6
"The showup itself consisted of two detectives walking respondent past the victim." 409 U.S., at 195, 93 S.Ct., at 380. The police also ordered respondent to repeat the words used by the criminal. Inadequate efforts were made to secure participants for a lineup, and there was no pressing need to use a showup.
7
See, e. g., N. Sobel, supra, n. 1, §§ 37, 38 (Supp.1977); Grano, Kirby, Biggers, and Ash : Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent?, 72 Mich.L.Rev. 717 (1974); M. Hartman & N. Goldberg, The Death of the Warren Court, The Doctrine of Suggestive Identification, 32 NLADA Briefcase 78 (1974); Pulaski, Neil v. Biggers : The Supreme Court Dismantles the Wade Trilogy's Due Process Protection, 26 Stan.L.Rev. 1097 (1974); Recent Developments, Identification: Unnecessary Suggestiveness May Not Violate Due Process, 73 Colum.L.Rev. 1168 (1973).
8
See, e. g., People v. Anderson, 389 Mich. 155, 172-180, 192-220, 205 N.W.2d 461, 468-472, 479-494, 485 (1973); Levine & Tapp, The Psychology of Criminal Identification: The Gap From Wade to Kirby, 121 U.Pa.L.Rev. 1079 (1973); O'Connor, "That's the Man": A Sobering Study of Eyewitness Identification and the Polygraph, 49 St. John's L.Rev. 1 (1974); McGowan, supra, n. 4, at 238-239; Grano, supra, n. 7, at 723-724, 768-770; Recent Developments, supra, n. 7, at 1169 n. 11.
Moreover, as the exhaustive opinion of the Michigan Supreme Court in People v. Anderson, supra, noted:
"For a number of obvious reasons, however, including the fact that there is no on-going systematic study of the problem, the reported cases of misidentification are in every likelihood only the top of the iceberg. The writer of this opinion, for example, was able to turn up three very recent unreported cases right here in Michigan in the course of a few hours' inquiry." 389 Mich., at 179-180, 205 N.W.2d, at 472.
9
See also, 429 U.S., at 499, n. 6, 97 S.Ct., at 716; United States v. Washington, 431 U.S. 181, 193-194, 97 S.Ct. 1814, 1821-1822, 52 L.Ed.2d 238 (1977) (Brennan, J., dissenting); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977). Cf. People v. Anderson, supra; Commonwealth v. Botelho, Mass., 343 N.E.2d 876 (1976).
10
See, e. g., Wall, supra, n. 1, at 15-16; People v. Anderson, 389 Mich., at 217-220, 205 N.W.2d, at 493-494; O'Connor, supra, n. 8, at 4-6.
11
See, e. g., Levine & Tapp, supra, n. 8, at 1100-1101; Note, Pretrial Identification Procedures Wade to Gilbert to Stovall: Lower Courts Bobble the Ball, 55 Minn.L.Rev. 779, 789 (1971); People v. Anderson, supra, at 214-215, 205 N.W.2d at 491. Reviewing a number of its cases, the Court of Appeals for the District of Columbia Circuit concluded several years ago that while showups occurring up to perhaps 30 minutes after a crime are generally permissible, one taking place four hours later, far removed from the crime scene, was not. McRae v. United States, 137 U.S.App.D.C. 80, 87, 420 F.2d 1283, 1290 (1969).
12
Brathwaite had come to the United States from his native Barbados as an adult. Tr. 99. It is also noteworthy that the informant who witnessed the transaction and was described by Glover as "trustworthy," id., at 47, disagreed with Glover's recollection of the event. The informant testified that it was a woman in the apartment who took the money from Glover and gave him the drugs in return. Id., at 86-87.
13
Indeed, the police carefully staged Brathwaite's arrest in the same apartment that was used for the sale, see ante, at 101, 116, indicating that they were fully capable of keeping track of his whereabouts and using this information in their investigation.
14
It should be noted that this was not a case where the witness knew the person whom he saw committing a crime, or had an unusually long time to observe the criminal, so that the identification procedure was merely used to confirm the suspect's identity. Cf. United States v. Wade, 388 U.S. 218, 250, 251, 87 S.Ct. 1926, 1944, 1945, 18 L.Ed.2d 1149 (1967) (White, J., dissenting). For example, had this been an ongoing narcotics investigation in which Glover had met the seller a number of times, the procedure would have been less objectionable.
15
See, e. g., United States v. Wade, supra, at 228-229, 87 S.Ct., at 1933; People v. Anderson, 389 Mich., at 173-177, 215-217, 205 N.W.2d, at 468-471, 491-493; Wall, supra, n. 1, at 26-40; O'Connor, supra, n. 8, at 9-10; Levine & Tapp, supra, n. 8.
16
In fact, the trial record indicates that D'Onofrio was remarkably ill-informed, although it does not appear that Glover knew this at the time of the identification. While the Court is impressed by D'Onofrio's immediate response to Glover's description, ante, at 108, 115, that cannot alter the fact that the detective, who had not witnessed the transaction, acted on a wild guess that respondent was the seller. D'Onofrio's hunch rested solely on Glover's vague description, yet D'Onofrio had seen respondent only "(s)everal times, mostly in his vehicle." Tr. 64. There was no evidence that respondent was even a suspected narcotics dealer, and D'Onofrio thought that the drugs had been purchased at a different apartment from the one Glover actually went to. Id., at 47, 68, 69. The identification of respondent provides a perfect example of the investigator and the witness bolstering each other's inadequate knowledge to produce a seemingly accurate but actually worthless identification. See Sobel, supra, n. 1, § 3.02, at 12.
17
That the "identification was made in circumstances allowing care and reflection," ante, at 116, is hardly an unequivocal sign of accuracy. Time for reflection can just as easily be time for reconstructing an image only dimly remembered to coincide with the powerful suggestion before the viewer.
18
This discussion does not imply any lack of respect for the honesty and dedication of the police. We all share the frailties of human nature that create the problem. Justice Frank O'Connor of the New York Supreme Court decried the dangers of eyewitness testimony in a recent article that began with this caveat:
"From the vantage point of ten years as District Attorney of Queens County (1956-1966) and six years on the trial bench (1969 to (1974)), the writer holds in high regard the professional competence and personal integrity of most policemen. Laudable instances of police efforts to clear a doubtful suspect are legion. Deliberate, willful efforts to frame or railroad an innocent man are totally unknown, at least to me. Yet, once the best-intentioned officer becomes honestly convinced that he has the right man, human nature being what it is, corners may be cut, some of the niceties forgotten, and serious error committed." O'Connor, supra, n. 8, at 1 n. 1.
| 01
|
432 U.S. 63
97 S.Ct. 2264
53 L.Ed.2d 113
TRANS WORLD AIRLINES, INC., Petitioner,v.Larry G. HARDISON et al. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, et al., Petitioners, v. Larry G. HARDISON et al.
Nos. 75-1126, 75-1385.
Argued March 30, 1977.
Decided June 16, 1977.
Syllabus
Respondent Hardison (hereafter respondent) was employed by Trans World Airlines (TWA), petitioner in No. 75-1126, in a department that operated 24 hours a day throughout the year in connection with an airplane maintenance and overhaul base. Respondent was subject to a seniority system in a collective-bargaining agreement between TWA and the International Association of Machinists & Aerospace Workers (union), petitioner in No. 75-1385, whereby the most senior employees have first choice for job and shift assignments as they become available, and the most junior employees are required to work when enough employees to work at a particular time or in a particular job to fill TWA's needs cannot be found. Because respondent's religious beliefs prohibit him from working on Saturdays, attempts were made to accommodate him, and these were temporarily successful mainly because on his job at the time he had sufficient seniority regularly to observe Saturday as his Sabbath. But when he sought, and was transferred to, another job where he was asked to work Saturdays and where he had low seniority, problems began to arise. TWA agreed to permit the union to seek a change of work assignments, but the union was not willing to violate the seniority system, and respondent had insufficient seniority to bid for a shift having Saturdays off. After TWA rejected a proposal that respondent work only four days a week on the ground that this would impair critical functions in the airline operations, no accommodation could be reached, and respondent was discharged for refusing to work on Saturdays. Then, having first invoked the administrative remedy provided by Title VII of the Civil Rights Act of 1964, respondent brought an action for injunctive relief against TWA and the union, claiming that his discharge constituted religious discrimination in violation of § 703(a)(1) of the Act, which makes it an unlawful employment practice for an employer to discriminate against an employee on the basis of his religion. He also made certain other charges against the union. His claim of religious discrimination was based on the 1967 Equal Employment Opportunity Commission (EEOC) guidelines in effect at the time requiring an employer, short of "undue hardship," to make "reasonable accommodations" to the religious needs of its employees, and on similar language in the 1972 amendments to Title VII. The District Court ruled in favor of both TWA and the union, holding that the union's duty to accommodate respondent's religious beliefs did not require it to ignore the seniority system, and that TWA had satisfied its "reasonable accommodations" obligation. The Court of Appeals affirmed the judgment for the union but reversed the judgment for TWA, holding that TWA had not satisfied its duty to accommodate respondent's religious needs under the EEOC guidelines. The court took the view that TWA had rejected three reasonable alternatives, any one of which would have satisfied its obligation without undue hardship: (1) Within the framework of the seniority system, TWA could have permitted respondent to work a four-day week, utilizing a supervisor or another worker on duty elsewhere, even though this would have caused other shop functions to suffer; (2) TWA could have filled respondent's Saturday shift from other available personnel, even though this would have involved premium overtime pay; and (3) TWA could have arranged a "swap" between respondent and another employee either for another shift or for the Sabbath days, even though this would have involved a breach of the seniority system. Held: TWA, which made reasonable efforts to accommodate respondent's religious needs, did not violate Title VII, and each of the Court of Appeals' suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines. Pp. 76-85.
(a) The seniority system itself represented a significant accommodation to the needs, both religious and secular, of all of TWA's employees. Pp. 77-78.
(b) TWA itself cannot be faulted for having failed to work out a shift or job swap for respondent. Both the union and TWA had agreed to the seniority system; the union was unwilling to entertain a variance over the objections of employees senior to respondent; and for TWA to have arranged unilaterally for a swap would have breached the collective-bargaining agreement. An agreed-upon seniority system is not required to give way to accommodate religious observances, and it would be anomalous to conclude that by "reasonable accommodations" Congress meant that an employer must deny the shift and job preferences of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others. Title VII does not require an employer to go that far. Pp. 79-81.
(c) Under § 703(h) of Title VII, absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system is discriminatory in its effect. Pp. 81-82.
(d) To require TWA to bear more than a de minimis cost in order to give respondent Saturdays off would be an undue hardship, for, like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. Absent clear statutory language or legislative history to the contrary, the statute, the paramount concern of which is to eliminate discrimination in employment, cannot be construed to require an employer to discriminate against some employees in order to enable others to observe their Sabbath. Pp. 84-85.
527 F.2d 33, reversed.
George E. Feldmiller, Kansas City, Mo., for petitioner Trans World Airlines, Inc.
Mozart G. Ratner, Washington, D. C., for petitioners International Ass'n of Machinists etc., et al.
William H. Pickett, Kansas City, Mo., for respondents.
Nathan Lewin, Washington, D. C., for the Nat. Jewish Com'n on Law and Public Affairs, as amicus curiae, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.
1
Section 703(a)(1) of the Civil Rights Act of 1964, Title VII, 78 Stat. 255, 42 U.S.C. § 2000e-2(a)(1), makes it an unlawful employment practice for an employer to discriminate against an employee or a prospective employee on the basis of his or her religion. At the time of the events involved here, a guideline of the Equal Employment Opportunity Commission (EEOC), 29 CFR § 1605.1(b) (1968), required, as the Act itself now does, 42 U.S.C. § 2000e(j) (1970 ed., Supp. V), that an employer, short of "undue hardship," make "reasonable accommodations" to the religious needs of its employees. The issue in this case is the extent of the employer's obligation under Title VII to accommodate an employee whose religious beliefs prohibit him from working on Saturdays.
2
* We summarize briefly the facts found by the District Court. 375 F.Supp. 877 (WD Mo.1974).
3
Petitioner Trans World Airlines (TWA) operates a large maintenance and overhaul base in Kansas City, Mo. On June 5, 1967, respondent Larry G. Hardison was hired by TWA to work as a clerk in the Stores Department at its Kansas City base. Because of its essential role in the Kansas City operation, the Stores Department must operate 24 hours per day, 365 days per year, and whenever an employee's job in that department is not filled, an employee must be shifted from another department, or a supervisor must cover the job, even if the work in other areas may suffer.
4
Hardison, like other employees at the Kansas City base, was subject to a seniority system contained in a collective-bargaining agreement1 that TWA maintains with petitioner International Association of Machinists and Aerospace Workers (IAM).2 The seniority system is implemented by the union steward through a system of bidding by employees for particular shift assignments as they become available. The most senior employees have first choice for job and shift assignments, and the most junior employees are required to work when the union steward is unable to find enough people willing to work at a particular time or in a particular job to fill TWA's needs.
5
In the spring of 1968 Hardison began to study the religion known as the Worldwide Church of God. One of the tenets of that religion is that one must observe the Sabbath by refraining from performing any work from sunset on Friday until sunset on Saturday. The religion also proscribes work on certain specified religious holidays.
6
When Hardison informed Everett Kussman, the manager of the Stores Department, of his religious conviction regarding observance of the Sabbath, Kussman agreed that the union steward should seek a job swap for Hardison or a change of days off; that Hardison would have his religious holidays off whenever possible if Hardison agreed to work the traditional holidays when asked; and that Kussman would try to find Hardison another job that would be more compatible with his religious beliefs. The problem was temporarily solved when Hardison transferred to the 11 p. m.-7 a. m. shift. Working this shift permitted Hardison to observe his Sabbath.
7
The problem soon reappeared when Hardison bid for and received a transfer from Building 1, where he had been employed, to Building 2, where he would work the day shift. The two buildings had entirely separate seniority lists; and while in Building 1 Hardison had sufficient seniority to observe the Sabbath regularly, he was second from the bottom on the Building 2 seniority list.
8
In Building 2 Hardison was asked to work Saturdays when a fellow employee went on vacation. TWA agreed to permit the union to seek a change of work assignments for Hardison, but the union was not willing to violate the seniority provisions set out in the collective-bargaining contract,3 and Hardison had insufficient seniority to bid for a shift having Saturdays off.
9
A proposal that Hardison work only four days a week was rejected by the company. Hardison's job was essential and on weekends he was the only available person on his shift to perform it. To leave the position empty would have impaired supply shop functions, which were critical to airline operations; to fill Hardison's position with a supervisor or an employee from another area would simply have undermanned another operation; and to employ someone not regularly assigned to work Saturdays would have required TWA to pay premium wages.
10
When an accommodation was not reached, Hardison refused to report for work on Saturdays. A transfer to the twilight shift proved unavailing since that scheduled still required Hardison to work past sundown on Fridays. After a hearing, Hardison was discharged on grounds of insubordination for refusing to work during his designated shift.
11
Hardison, having first invoked the administrative remedy provided by Title VII, brought this action for injunctive relief in the United States District Court against TWA and IAM, claiming that his discharge by TWA constituted religious discrimination in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1). He also charged that the union had discriminated against him by failing to represent him adequately in his dispute with TWA and by depriving him of his right to exercise his religious beliefs. Hardison's claim of religious discrimination rested on 1967 EEOC guidelines requiring employers "to make reasonable accommodations to the religious needs of employees" whenever such accommodation would not work an "undue hardship," 29 CFR § 1605.1 (1968), and on similar language adopted by Congress in the 1972 amendments to Title VII, 42 U.S.C. § 2000e(j) (1970 ed., Supp. V).
12
After a bench trial, the District Court ruled in favor of the defendants. Turning first to the claim against the union, the District Court ruled that although the 1967 EEOC guidelines were applicable to unions, the union's duty to accommodate Hardison's belief did not require it to ignore its seniority system as Hardison appeared to claim.4 As for Hardison's claim against TWA, the District Court rejected at the outset TWA's contention that requiring it in any way to accommodate the religious needs of its employees would constitute an unconstitutional establishment of religion. As the District Court construed the Act, however, TWA had satisfied its "reasonable accommodations" obligation, and any further accommodation would have worked an undue hardship on the company.
13
The Court of Appeals for the Eighth Circuit reversed the judgment for TWA. 527 F.2d 33 (1975). It agreed with the District Court's constitutional ruling, but held that TWA had not satisfied its duty to accommodate. Because it did not appear that Hardison had attacked directly the judgment in favor of the union, the Court of Appeals affirmed that judgment without ruling on its substantive merits.
14
In separate petitions for certiorari TWA and IAM contended that adequate steps had been taken to accommodate Hardison's religious observances and that to construe the statute to require further efforts at accommodation would create an establishment of religion contrary to the First Amendment of the Constitution. TWA also contended that the Court of Appeals improperly ignored the District Court's findings of fact.
15
We granted both petitions for certiorari. 429 U.S. 958, 97 S.Ct. 381, 50 L.Ed.2d 325 (1976). Because we agree with petitioners that their conduct was not a violation of Title VII,5 we need not reach the other questions presented.
II
16
The Court of Appeals found that TWA had committed an unlawful employment practice under § 703(a)(1) of the Act, 42 U.S.C. § 2000e-2(a)(1), which provides:
17
"(a) It shall be an unlawful employment practice for an employer
18
"(1) to fail to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
19
The emphasis of both the language and the legislative history of the statute is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin.6 This is true regardless of whether the discrimination is directed against majorities or minorities. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 2578, 49 L.Ed.2d 493 (1976). See Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971).
20
The prohibition against religious discrimination soon raised the question of whether it was impermissible under § 703(a)(1) to discharge or refuse to hire a person who for religious reasons refused to work during the employer's normal work-week. In 1966 an EEOC guideline dealing with this problem declared that an employer had an obligation under the statute "to accommodate to the reasonable religious needs of employees . . . where such accommodation can be made without serious inconvenience to the conduct of the business." 29 CFR § 1605.1 (1967).
21
In 1967 the EEOC amended its guidelines to require employers "to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer's business." 29 CFR § 1605.1 (1968). The EEOC did not suggest what sort of accommodations are "reasonable" or when hardship to an employer becomes "undue."7
22
This question the extent of the required accommodation remained unsettled when this Court, in Dewey v. Reynolds Metals Co., 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971), affirmed by an equally divided Court the Sixth Circuit's decision in 429 F.2d 324 (1970). The discharge of an employee who for religious reasons had refused to work on Sundays was there held by the Court of Appeals not to be an unlawful employment practice because the manner in which the employer allocated Sunday work assignments was discriminatory in neither its purpose nor effect; and consistent with the 1967 EEOC guidelines, the employer had made a reasonable accommodation of the employee's beliefs by giving him the opportunity to secure a replacement for his Sunday work.8
23
In part "to resolve by legislation" some of the issues raised in Dewey, 118 Cong.Rec. 706 (1972) (remarks of Sen. Randolph), Congress included the following definition of religion in its 1972 amendments to Title VII:
24
"The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." § 701(j), 42 U.S.C. § 2000e(j) (1970 ed., Supp. V).
25
The intent and effect of this definition was to make it an unlawful employment practice under § 703(a)(1) for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees. But like the EEOC guidelines, the statute provides no guidance for determining the degree of accommodation that is required of an employer. The brief legislative history of § 701(j) is likewise of little assistance in this regard.9 The proponent of the measure, Senator Jennings Randolph, expressed his general desire "to assure that freedom from religious discrimination in the employment of workers is for all time guaranteed by law," 118 Cong.Rec. 705 (1972) but he made no attempt to define the precise circumstances under which the "reasonable accommodation" requirement would be applied.10
26
In brief, the employer's statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear, but the reach of that obligation has never been spelled out by Congress or by EEOC guidelines. With this in mind, we turn to a consideration of whether TWA has met its obligation under Title VII to accommodate the religious observances of its employees.
III
27
The Court of Appeals held that TWA had not made reasonable efforts to accommodate Hardison's religious needs under the 1967 EEOC guidelines in effect at the time the relevant events occurred.11 In its view, TWA had rejected three reasonable alternatives, any one of which would have satisfied its obligation without undue hardship. First, within the framework of the seniority system, TWA could have permitted Hardison to work a four-day week, utilizing in his place a supervisor or another worker on duty elsewhere. That this would have caused other shop functions to suffer was insufficient to amount to undue hardship in the opinion of the Court of Appeals. Second according to the Court of Appeals, also within the bounds of the collective-bargaining contract the company could have filled Hardison's Saturday shift from other available personnel competent to do the job, of which the court said there were at least 200. That this would have involved premium overtime pay was not deemed an undue hardship. Third, TWA could have arranged a "swap between Hardison and another employee either for another shift or for the Sabbath days." In response to the assertion that this would have involved a breach of the seniority provisions of the contract, the court noted that it had not been settled in the courts whether the required statutory accommodation to religious needs stopped short of transgressing seniority rules, but found it unnecessary to decide the issue because, as the Court of Appeals saw the record, TWA had not sought, and the union had therefore not declined to entertain, a possible variance from the seniority provisions of the collective-bargaining agreement. The company had simply left the entire matter to the union steward who the Court of Appeals said "likewise did nothing."
28
We disagree with the Court of Appeals in all relevant respects. It is our view that TWA made reasonable efforts to accommodate and that each of the Court of Appeals' suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines.
A.
29
It might be inferred from the Court of Appeals' opinion and from the brief of the EEOC in this Court that TWA's efforts to accommodate were no more than negligible. The findings of the District Court, supported by the record, are to the contrary. In summarizing its more detailed findings, the District Court observed:
30
"TWA established as a matter of fact that it did take appropriate action to accommodate as required by Title VII. It held several meetings with plaintiff at which it attempted to find a solution to plaintiff's problems. It did accommodate plaintiff's observance of his special religious holidays. It authorized the union steward to search for someone who would swap shifts, which apparently was normal procedure." 375 F.Supp., at 890-891.
31
It is also true that TWA itself attempted without success to find Hardison another job. The District Court's view was that TWA had done all that could reasonably be expected within the bounds of the seniority system.
32
The Court of Appeals observed, however, that the possibility of a variance from the seniority system was never really posed to the union. This is contrary to the District Court's findings and to the record. The District Court found that when TWA first learned of Hardison's religious observances in April 1968, it agreed to permit the union's steward to seek a swap of shifts or days off but that "the steward reported that he was unable to work out scheduling changes and that he understood that no one was willing to swap days with plaintiff". Id., at 888. Later, in March 1969, at a meeting held just two days before Hardison first failed to report for his Saturday shift, TWA again "offered to accommodate plaintiff's religious observance by agreeing to any trade of shifts or change of sections that plaintiff and the union could work out . . . . Any shift or change was impossible within the seniority framework and the union was not willing to violate the seniority provisions set out in the contract to make a shift or change." Id., at 889. As the record shows, Hardison himself testified that Kussman was willing, but the union was not, to work out a shift or job trade with another employee. App. 76-77.
33
We shall say more about the seniority system, but at this juncture it appears to us that the system itself represented a significant accommodation to the needs, both religious and secular, of all of TWA's employees. As will become apparent, the seniority system represents a neutral way of minimizing the number of occasions when an employee must work on a day that he would prefer to have off. Additionally, recognizing that weekend work schedules are the least popular, the company made further accommodation by reducing its work force to a bare minimum on those days.
B
34
We are also convinced, contrary to the Court of Appeals, that TWA itself cannot be faulted for having failed to work out a shift or job swap for Hardison. Both the union and TWA had agreed to the seniority system; the union was unwilling to entertain a variance over the objections of men senior to Hardison; and for TWA to have arranged unilaterally for a swap would have amounted to a breach of the collective-bargaining agreement.
35
(1)
36
Hardison and the EEOC insist that the statutory obligation to accommodate religious needs takes precedence over both the collective-bargaining contract and the seniority rights of TWA's other employees. We agree that neither a collective-bargaining contract nor a seniority system may be employed to violate the statute,12 but we do not believe that the duty to accommodate requires TWA to take steps inconsistent with the otherwise valid agreement. Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy, and seniority provisions are universally included in these contracts. Without a clear and express indication from Congress, we cannot agree with Hardison and the EEOC that an agreed-upon seniority system must give way when necessary to accommodate religious observances. The issue is important and warrants some discussion.
37
Any employer who, like TWA, conducts an around-the-clock operation is presented with the choice of allocating work schedules either in accordance with the preferences of its employees or by involuntary assignment. Insofar as the varying shift preferences of its employees complement each other, TWA could meet its manpower needs through voluntary work scheduling. In the present case, for example, Hardison's supervisor foresaw little difficulty in giving Hardison his religious holidays off since they fell on days that most other employees preferred to work, while Hardison was willing to work on the traditional holidays that most other employees preferred to have off.
38
Whenever there are not enough employees who choose to work a particular shift, however, some employees must be assigned to that shift even though it is not their first choice. Such was evidently the case with regard to Saturday work; even though TWA cut back its weekend work force to a skeleton crew, not enough employees chose those days off to staff the Stores Department through voluntary scheduling. In these circumstances, TWA and IAM agreed to give first preference to employees who had worked in a particular department the longest.
39
Had TWA nevertheless circumvented the seniority system by relieving Hardison of Saturday work and ordering a senior employee to replace him, it would have denied the latter his shift preference so that Hardison could be given his. The senior employee would also have been deprived of his contractual rights under the collective-bargaining agreement.
40
It was essential to TWA's business to require Saturday and Sunday work from at least a few employees even though most employees preferred those days off. Allocating the burdens of weekend work was a matter for collective bargaining. In considering criteria to govern this allocation, TWA and the union had two alternatives: adopt a neutral system, such as seniority, a lottery, or rotating shifts; or allocate days off in accordance with the religious needs of its employees. TWA would have had to adopt the latter in order to assure Hardison and others like him of getting the days off necessary for strict observance of their religion, but it could have done so only at the expense of others who had strong, but perhaps nonreligious, reasons for not working on weekends. There were no volunteers to relieve Hardison on Saturdays, and to give Hardison Saturdays off, TWA would have had to deprive another employee of his shift preference at least in part because he did not adhere to a religion that observed the Saturday Sabbath.
41
Title VII does not contemplate such unequal treatment. The repeated, unequivocal emphasis of both the language and the legislative history of Title VII is on eliminating discrimination in employment, and such discrimination is proscribed when it is directed against majorities as well as minorities. See supra, at 71-72. Indeed, the foundation of Hardison's claim is that TWA and IAM engaged in religious discrimination in violation of § 703(a)(1) when they failed to arrange for him to have Saturdays off. It would be anomalous to conclude that by "reasonable accommodation" Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far.
42
(2)
43
Our conclusion is supported by the fact that seniority systems are afforded special treatment under Title VII itself. Section 703(h) provides in pertinent part:
44
"Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . .." 42 U.S.C. § 2000e-2(h).
45
"(T)he unmistakable purpose of § 703(h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 352, 97 S.Ct. 1843, 1863, 52 L.Ed.2d 396 (1977). See also United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Section 703(h) is "a definitional provision; as with the other provisions of § 703, subsection (h) delineates which employment practices are illegal and thereby prohibited and which are not." Franks v. Bowman Transportation Co., 424 U.S. 747, 758, 96 S.Ct. 1251, 1261, 47 L.Ed.2d 444 (1976). Thus, absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.
46
There has been no suggestion of discriminatory intent in this case. "The seniority system was not designed with the intention to discriminate against religion nor did it act to lock members of any religion into a pattern wherein their freedom to exercise their religion was limited. It was coincidental that in plaintiff's case the seniority system acted to compound his problems in exercising his religion." 375 F.Supp., at 883. The Court of Appeals' conclusion that TWA was not limited by the terms of its seniority system was in substance nothing more than a ruling that operation of the seniority system was itself an unlawful employment practice even though no discriminatory purpose had been shown. That ruling is plainly inconsistent with the dictates of § 703(h), both on its face and as interpreted in the recent decisions of this Court.13
47
As we have said, TWA was not required by Title VII to carve out a special exception to its seniority system in order to help Hardison to meet his religious obligations.14
C
48
The Court of Appeals also suggested that TWA could have permitted Hardison to work a four-day week if necessary in order to avoid working on his Sabbath. Recognizing that this might have left TWA short-handed on the one shift each week that Hardison did not work, the court still concluded that TWA would suffer no undue hardship if it were required to replace Hardison either with supervisory personnel or with qualified personnel from other departments. Alternatively, the Court of Appeals suggested that TWA could have replaced Hardison on his Saturday shift with other available employees through the payment of premium wages. Both of these alternatives would involve costs to TWA, either in the form of lost efficiency in other jobs or higher wages.
49
To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.15 Like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. By suggesting that TWA should incur certain costs in order to give Hardison Saturdays off the Court of Appeals would in effect require TWA to finance an additional Saturday off and then to choose the employee who will enjoy it on the basis of his religious beliefs. While incurring extra costs to secure a replacement for Hardison might remove the necessity of compelling another employee to work involuntarilys in Hardison's place, it would not change the fact that the privilege of having Saturdays off would be allocated according to religious beliefs.
50
As we have seen, the paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment. In the absence of clear statutory language or legislative history to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.
51
Reversed.
52
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
53
One of the most intractable problems arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., has been whether an employer is guilty of religious discrimination when he discharges an employee (or refuses to hire a job applicant) because of the employee's religious practices. Particularly troublesome has been the plight of adherents to minority faiths who do not observe the holy days on which most businesses are closed Sundays, Christmas, and Easter but who need time off for their own days of religious observance. The Equal Employment Opportunity Commission has grappled with this problem in two sets of regulations, and in a long line of decisions. Initially the Commission concluded that an employer was "free under Title VII to establish a normal workweek . . . generally applicable to all employees," and that an employee could not "demand any alteration in (his work schedule) to accommodate his religious needs." 29 CFR §§ 1605.1(a)(3), (b)(3) (1967). Eventually, however, the Commission changed its view and decided that employers must reasonably accommodate such requested schedule changes except where "undue hardship" would result for example, "where the employee's needed work cannot be performed by another employee of substantially similar qualifications during the period of absence." 29 CFR § 1605.1(b) (1976).1 In amending Title VII in 1972 Congress confronted the same problem and adopted the second position of the EEOC. Pub. L. 92-261, § 2(7), 86 Stat. 103, codified at 42 U.S.C. § 2000e(j) (1970 ed., Supp. V). Both before and after the 1972 amendment the lower courts have considered at length the circumstances in which employers must accommodate the religious practices of employees, reaching what the Court correctly describes as conflicting results, ante, at 75 n. 10. And on two occasions this Court has attempted to provide guidance to the lower courts, only to find ourselves evenly divided. Parker Seal Co. v. Cummins, 429 U.S. 65, 97 S.Ct. 342, 50 L.Ed.2d 223 (1976); Dewey v. Reynolds Metals Co., 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971).
54
Today's decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices. The Court holds, in essence, that although the EEOC regulations and the Act state that an employer must make reasonable adjustments in his work demands to take account of religious observances, the regulation and Act do not really mean what they say. An employer, the Court concludes, need not grant even the most minor special privilege to religious observers to enable them to follow their faith. As a question of social policy, this result is deeply troubling, for a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job. And as a matter of law today's result is intolerable, for the Court adopts the very position that Congress expressly rejected in 1972, as if we were free to disregard congressional choices that a majority of this Court thinks unwise. I therefore dissent.
55
* With respect to each of the proposed accommodations to respondent Hardison's religious observances that the Court discusses, it ultimately notes that the accommodation would have required "unequal treatment," ante, at 81, 84-85, in favor of the religious observer. That is quite true. But if an accommodation can be rejected simply because it involves preferential treatment, then the regulation and the statute, while brimming with "sound and fury," ultimately "signif(y) nothing."
56
The accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee. In some of the reported cases, the rule in question has governed work attire; in other cases it has required attendance at some religious function; in still other instances, it has compelled membership in a union; and in the largest class of cases, it has concerned work schedules.2 What all these cases have in common is an employee who could comply with the rule only by violating what the employee views as a religious commandment. In each instance, the question is whether the employee is to be exempt from the rule's demands. To do so will always result in a privilege being "allocated according to religious beliefs," ante, at 85, unless the employer gratuitously decides to repeal the rule in toto. What the statute says, in plain words, is that such allocations are required unless "undue hardship" would result.
57
The point is perhaps best made by considering a not altogether hypothetical example. See CCH EEOC Decisions (1973) P 6180. Assume that an employer requires all employees to wear a particular type of hat at work in order to make the employees readily identifiable to customers. Such a rule obviously does not, on its face, violate Title VII, and an employee who altered the uniform for reasons of taste could be discharged. But a very different question would be posed by the discharge of an employee who, for religious reasons, insisted on wearing over her hair a tightly fitted scarf which was visible through the hat. In such a case the employer could accommodate this religious practice without undue hardship or any hardship at all. Yet as I understand the Court's analysis and nothing in the Court's response, ante, at 83 nn. 14 and 15, is to the contrary the accommodation would not be required because it would afford the privilege of wearing scarfs to a select few based on their religious beliefs. The employee thus would have to give up either the religious practice or the job. This, I submit, makes a mockery of the statute.
58
In reaching this result, the Court seems almost oblivious of the legislative history of the 1972 amendments of Title VII which is briefly recounted in the Court's opinion, ante, at 73-75. That history is far more instructive than the Court allows. After the EEOC promulgated its second set of guidelines requiring reasonable accommodations unless undue hardship would result, at least two courts issued decisions questioning, whether the guidelines were consistent with Title VII. Dewey v. Reynolds Metals Co., 429 F.2d 324 (CA6 1970), aff'd by equally divided Court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971); Riley v. Bendix Corp., 330 F.Supp. 583 (MD Fla.1971), rev'd 464 F.2d 1113 (CA5 1972). These courts reasoned, in language striking similar to today's decision, that to excuse religious observers from neutral work rules would "discriminate against . . . other employees' and "constitute unequal administration of the collective bargaining agreement." Dewey v. Reynolds Metals Co., supra, at 330. They therefore refused to equate "religious discrimination with failure to accommodate." 429 F.2d, at 335. When Congress was reviewing Title VII in 1972, Senator Jennings Randolph informed the Congress of these decisions which, he said, had "clouded" the meaning of religious discrimination. 118 Cong. Rec. 706 (1972). He introduced an amendment, tracking the language of the EEOC regulation, to make clear that Title VII requires religious accommodation, even though unequal treatment would result. The primary purpose of the amendment, he explained, was to protect Saturday Sabbatarians like himself from employers who refuse "to hire or to continue in employment employees whose religious practices rigidly require them to abstain from work in the nature of hire on particular days." Id., at 705. His amendment was unanimously approved by the Senate on a roll-call vote, id., at 731, and was accepted by the Conference Committee, H.R.Rep.No. 92-899, p. 15 (1972); S.Rep.No. 92-681, p. 15 (1972), whose report was approved by both Houses, 118 Cong.Rec. 7169, 7573 (1972). Yet the Court today, in rejecting any accommodation that involves preferential treatment, follows the Dewey decision in direct contravention of congressional intent.
59
The Court's interpretation of the statute, by effectively nullifying it, has the singular advantage of making consideration of petitioners' constitutional challenge unnecessary. The Court does not even rationalize its construction on this ground, however, nor could it, since "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." Swain v. Pressley, 430 U.S. 372, 378, n. 11, 97 S.Ct. 1224, 1228, 51 L.Ed.2d 411 (1977). Moreover, while important constitutional questions would be posed by interpreting the law to compel employers (or fellow employees) to incur substantial costs to aid the religious observer,3 not all accommodations are costly, and the constitutionality of the statute is not placed in serious doubt simply because it sometimes requires an exemption from a work rule. Indeed, this Court has repeatedly found no Establishment Clause problems in exempting religious observers from state-imposed duties, e. g., Wisconsin v. Yoder, 406 U.S. 205, 234-235, n. 22, 92 S.Ct. 1526, 1542-1543, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 409, 83 S.Ct. 1790, 1796, 10 L.Ed.2d 965 (1963); Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952), even when the exemption was in no way compelled by the Free Exercise Clause, e. g., Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Welsh v. United States, 398 U.S. 333, 371-372, 90 S.Ct. 1792, 1813-1814, 26 L.Ed.2d 308 (1970) (White, J., dissenting); Sherbert v. Verner, supra, 374 U.S., at 422, 83 S.Ct., at 1803 (Harlan J., dissenting); Braunfeld v. Brown, 366 U.S. 599, 608, 81 S.Ct. 1144, 1148, 6 L.Ed.2d 563 (1961) (dictum); McGowan v. Maryland, 366 U.S. 420, 520, 81 S.Ct. 1101, 1186, 6 L.Ed.2d 393 (1961) (Opinion of Frankfurter, J.).4 If the State does not establish religion over nonreligion by excusing religious practitioners from obligations owed the State, I do not see how the State can be said to establish religion by requiring employers to do the same with respect to obligations owed the employer. Thus, I think it beyond dispute that the Act does and, consistently with the First Amendment, can require employers to grant privileges to religious observers as part of the accommodation process.
II
60
Once it is determined that the duty to accommodate sometimes requires that an employee be exempted from an otherwise valid work requirement, the only remaining question is whether this is such a case: Did TWA prove that it exhausted all reasonable accommodations, and that the only remaining alternatives would have caused undue hardship on TWA's business? To pose the question is to answer it, for all that the District Court found TWA had done to accommodate respondent's Sabbath observance was that it "held several meetings with (respondent) . . . (and) authorized the union steward to search for someone who would swap shifts." 375 F.Supp. 877, 890-891 (WD Mo.1974). To conclude that TWA, one of the largest air carriers in the Nation, would have suffered undue hardship had it done anything more defies both reason and common sense.
61
The Court implicitly assumes that the only means of accommodation open to TWA were to compel an unwilling employee to replace Hardison; to pay premium wages to a voluntary substitute; or to employ one less person during respondent's Sabbath shift.5 Based on this assumption, the Court seemingly finds that each alternative would have involved undue hardship not only because Hardison would have been given a special privilege, but also because either another employee would have been deprived of rights under the collective-bargaining agreement, ante, at 80-81, or because "more than a de minimis cost," ante, at 84, would have been imposed on TWA. But the Court's myopic view of the available options is not supported by either the District Court's findings or the evidence adduced at trial. Thus, the Court's conclusion cannot withstand analysis, even assuming that its rejection of the alternatives it does discuss is justifiable.6
62
To begin with, the record simply does not support the Court's assertion, made without accompanying citations, that "(t)here were no volunteers to relieve Hardison on Saturdays," ante, at 81. Everett Kussman, the manager of the department in which respondent worked, testified that he had made no effort to find volunteers, App. 136,7 and the union stipulated that its steward had not done so either, id., at 158.8 Thus, contrary to the Court's assumption, there may have been one or more employees who, for reasons of either sympathy or personal convenience, willingly would have substituted for respondent on Saturdays until respondent could either regain the non-Saturday shift he had held for the three preceding months9 or transfer back to his old department where he had sufficient seniority to avoid Saturday work. Alternatively, there may have been an employee who preferred respondent's Thursday-Monday daytime shift to his own; in fact, respondent testified that he had informed Kussman and the union steward that the clerk on the Sunday-Thursday night shift (the "graveyard" shift) was dissatisfied with his hours. Id., at 70. Thus, respondent's religious observance might have been accommodated by a simple trade of days or shifts without necessarily depriving any employee of his or her contractual rights10 and without imposing significant costs on TWA. Of course, it is also possible that no trade or none consistent with the seniority system could have been arranged. But the burden under the EEOC regulation is on TWA to establish that a reasonable accommodation was not possible. 29 CFR § 1605.1(c) (1976). Because it failed either to explore the possibility of a voluntary trade or to assure that its delegate, the union steward, did so, TWA was unable to meet its burden.
63
Nor was a voluntary trade the only option open to TWA that the Court ignores; to the contrary, at least two other options are apparent from the record. First, TWA could have paid overtime to a voluntary replacement for respondent assuming that someone would have been willing to work Saturdays for premium pay and passed on the cost to respondent. In fact, one accommodation Hardison suggested would have done just that by requiring Hardison to work overtime when needed at regular pay. Under this plan, the total overtime cost to the employer and the total number of overtime hours available for other employees would not have reflected Hardison's Sabbath absences. Alternatively, TWA could have transferred respondent back to his previous department where he had accumulated substantial seniority, as respondent also suggested.11 Admittedly, both options would have violated the collective-bargaining agreement; the former because the agreement required that employees working over 40 hours per week receive premium pay, and the latter because the agreement prohibited employees from transferring departments more than once every six months. But neither accommodation would have deprived any other employee of rights under the contract or violated the seniority system in any way.12 Plainly an employer cannot avoid his duty to accommodate by signing a contract that precludes all reasonable accommodations; even the Court appears to concede as much, ante, at 79. Thus I do not believe it can be even seriously argued that TWA would have suffered "undue hardship" to its business had it required respondent to pay the extra costs of his replacement, or had it transferred respondent to his former department.13
64
What makes today's decision most tragic, however, is not that respondent Hardison has been needlessly deprived of his livelihood simply because he chose to follow the dictates of his conscience. Nor is the tragedy exhausted by the impact it will have on thousands of Americans like Hardison who could be forced to live on welfare as the price they must pay for worshiping their God.14 The ultimate tragedy is that despite Congress' best efforts, one of this Nation's pillars of strength our hospitality to religious diversity has been seriously eroded. All Americans will be a little poorer until today's decision is erased.
65
I respectfully dissent.
1
The TWA-IAM agreement provides in pertinent part:
"The principle of seniority shall apply in the application of this Agreement in all reductions or increases of force, preference of shift assignment, vacation period selection, in bidding for vacancies or new jobs, and in all promotions, demotions, or transfers involving classifications covered by this Agreement.
"Except as hereafter provided in this paragraph, seniority shall apply in selection of shifts and days off within a classification within a department . . . ." App. 214.
2
TWA is the petitioner in No. 75-1126. Petitioners in No. 75-1385 are the international, local, and district levels of IAM, hereinafter collectively referred to as IAM or the union.
3
The union did have a Relief Committee organized to deal with the emergency problems of its members. The record reveals that in the past this Committee had been instrumental in arranging for temporary adjustments in work schedules to meet the needs of union members; but the record also reveals that the Relief Committee had almost never arranged permanent changes in work assignments and that Hardison never sought the assistance of that Committee.
4
The District Court voiced concern that if it did not find an undue hardship in such circumstances, accommodation of religious observances might impose " 'a priority of the religious over the secular' " and thereby raise significant questions as to the constitutional validity of the statute under the Establishment Clause of the First Amendment. 375 F.Supp. 877, 883 (WD Mo. 1974), quoting Edwards & Kaplan, Religious Discrimination and the Role of Arbitration Under Title VII, 69 Mich.L.Rev. 599, 628 (1971).
5
Because the judgment in its favor was affirmed by the Court of Appeals, the union was a prevailing party below; and Hardison has not filed a petition for certiorari seeking to change that judgment. It may thus appear anomalous to have granted the union's petition for certiorari as well as that of TWA. But the union's view is that the judgment below against TWA seriously involves union interests, because the rationale of the Court of Appeals' opinion, as the union understands it, "necessarily and explicitly assumes that petition Unions are legally obligated to waive or vary provisions of their collective bargaining agreement in order to accommodate respondent Hardison's beliefs, if called upon by TWA to do so." Pet. for Cert. in No. 75-1385, p. 2. This would appear to be the position of Hardison and the EEOC in this Court. Since we reverse the judgment against TWA, we need not pursue further the union's status in this Court.
6
See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 278-279, 96 S.Ct. 2574, 2577-2578, 49 L.Ed.2d 493 (1976); Franks v. Bowman Transportation Co., 424 U.S. 747, 763, 96 S.Ct. 1251, 1263, 47 L.Ed.2d 444 (1976); McDonnel Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 429-430, 91 S.Ct. 849, 852-853, 28 L.Ed.2d 158 (1971).
From the outset, Congress has said that "(t)he purpose of (Title VII) is to eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment based on race, color, religion, or national origin." H.R.Rep.No. 914, 88th Cong., 1st Sess., 26 (1963); U.S.Code Cong. & Admin.News 1964 pp. 2355, 2401. See 110 Cong.Rec. 13079-13080 (1964) (remarks of Sen. Clark). When Congress amended Title VII in 1972, it did not waver from its principal goal. While Congressmen differed on the best methods to eliminate discrimination in employment, no one questioned the desirability of seeking that goal. Compare H.R.Rep.No. 92-238 (1971) (majority report of the Committee of the Whole House), with id., at 58 (minority report).
7
The EEOC expressed the view that "undue hardship, for example, may exist where the employee's needed work cannot be performed by another employee of substantially similar qualifications during the period of absence of the Sabbath observer," 29 CFR § 1605.1 (1968). This single example was by no means intended to be exhaustive. In substance, the EEOC left further definition of its guidelines to its review of "each case on an individual basis in an effort to seek an equitable application of these guidelines to the variety of situations which arise due to the varied religious practices of the American people." Ibid. The EEOC at that time did not purport to change the view expressed in its 1966 guidelines that work schedules generally applicable to all employees may not be unreasonable, even if they do not "operate with uniformity . . . upon the religious observances of (all) employees." The EEOC's present view, expressed in an amicus curiae brief filed in support of Hardison and the Court of Appeals' judgment, is now otherwise, at least to some extent.
8
Judgment entered by an equally divided Court is not "entitled to precedential weight," Neil v. Biggers, 409 U.S. 188, 192, 93 S.Ct. 375, 379, 34 L.Ed.2d 401 (1972). Our ruling in Dewey thus does not resolve the questions there presented. Other factors, as well, make the impact of Dewey inconclusive. The conduct alleged to be an unlawful employment practice occurred prior to the promulgation of the 1967 guidelines, and the Court of Appeals expressed the view that those guidelines should not be given retroactive effect. Also, an earlier ruling by an arbitrator was held to have conclusively resolved the religious discrimination question in favor of the employer. But see Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). Finally, the employer in Dewey was not excused from a duty to accommodate; the Court of Appeals simply held that the employer had satisfied any obligation that it might have had under the statute.
9
Section 701(j) was added to the 1972 amendments on the floor of the Senate. The legislative history of the measure consists chiefly of a brief floor debate in the Senate, contained in less than two pages of the Congressional Record and consisting principally of the views of the proponent of the measure, Senator Jennings Randolph. 118 Cong.Rec. 705-706 (1972).
The Congressional Record, 118 Cong.Rec. 706-713 (1972), also contains reprints of Dewey and Riley v. Bendix Corp., 330 F.Supp. 583 (MD Fla.1971), rev'd 464 F.2d 1113 (CA5 1972), as well as a brief synopsis of the new provision, which makes reference to Dewey, 118 Cong.Rec. 7167 (1972). The significance of the legislative references to prior case law is unclear. In Riley the District Court ruled that an employer who discharged an employee for refusing to work on his Sabbath had not committed an unfair labor practice even though the employer had not made any effort whatsoever to accommodate the employee's religious needs. It is clear from the language of § 701(j) that Congress intended to change this result by requiring some form of accommodation; but this tells us nothing about how much an employer must do to satisfy its statutory obligation.
The reference to Dewey is even more opaque:
"The purpose of this subsection is to provide the statutory basis for EEOC to formulate guidelines on discrimination because of religion such as those challenged in Dewey v. Reynolds Metals Company, 429 F.2d 325 (6th Cir. 1970), Affirmed by an equally divided court, 402 U.S. 689 (, 91 S.Ct. 2186, 29 L.Ed.2d 267) (1971)." 118 Cong.Rec. 7167 (1972). Clearly, any suggestion in Dewey that an employer may not be required to make reasonable accommodation for the religious needs of its employees was disapproved by § 701(j); but Congress did not indicate that "reasonable accommodation" requires an employer to do more than was done in Dewey apparently preferring to leave that question open for future resolution by the EEOC. See also n. 8, supra.
10
Cases decided by the Courts of Appeals since the enactment of the 1972 amendments to Title VII similarly provide us with little guidance as to the scope of the employer's obligation. In circumstances where an employer has declined to take steps that would burden some employees in order to permit another employee or prospective employee to observe his Sabbath, the Fifth, Sixth, and Tenth Circuits have found no violation for failure to accommodate. Williams v. Southern Union Gas Co., 529 F.2d 483 (CA10 1976); Reid v. Memphis Publishing Co., 521 F.2d 512 (CA6 1975), cert. denied, 429 U.S. 964, 97 S.Ct. 394, 50 L.Ed.2d 333 (1976), pet. for rehearing pending, No. 75-1105; Johnson v. United States Postal Service, 497 F.2d 128 (CA5 1974). But the Fifth and Sixth Circuits have also reached the opposite conclusion on similar facts. Draper v. United States Pipe & Foundry Co., 527 F.2d 515 (CA6 1975); Cummins v. Parker Seal Co., 516 F.2d 544 (CA6 1975), aff'd by equally divided Court, 429 U.S. 65, 97 S.Ct. 342, 50 L.Ed.2d 223 (1976); Riley v. Bendix Corp., 464 F.2d 1113 (CA5 1972). These apparent intra-Circuit conflicts may be explainable on the basis of the differing facts of each case, but neither the Fifth nor the Sixth Circuit has suggested a theory of decision to justify the differing results that have been reached.
11
Ordinarily, an EEOC guideline is not entitled to great weight where, as here, it varies from prior EEOC policy and no new legislative history has been introduced in support of the change. General Electric Co. v. Gilbert, 429 U.S. 125, 140-145, 97 S.Ct. 401, 410-413, 50 L.Ed.2d 343 (1976). But where "Congress has not just kept its silence by refusing to overturn the administrative construction, but has ratified it with positive legislation", Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381-382, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969) (footnote omitted), the guideline is entitled to some deference, at least sufficient in this case to warrant our accepting the guideline as a defensible construction of the pre-1972 statute, i. e., as imposing on TWA the duty of "reasonable accommodation" in the absence of "undue hardship." We thus need not consider whether § 701(j) must be applied retroactively to the facts of this litigation.
12
"This Court has long held that employee expectations arising from a seniority system agreement may be modified by statutes furthering a strong public policy interest." Franks v. Bowman Transportation Co., 424 U.S., at 778, 96 S.Ct., at 1271. Cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). In Franks we held that it was permissible to award retroactive seniority to victims of past discrimination in order to implement the strong congressional policy of making victims of discrimination whole. Franks is not dispositive of the present case since here there is no evidence of past discrimination that must be remedied. Not only is the "make-whole" policy not present in this case, but, as we shall see, the strong congressional policy against discrimination in employment argues against interpreting the statute to require the abrogation of the seniority rights of some employees in order to accommodate the religious needs of others.
13
Franks v. Bowman Transportation Co., is not to the contrary. In Franks we held that "once an illegal discriminatory practice occurring after the effective date of the Act is proved", 424 U.S., at 762, 96 S.Ct., at 1263; § 703(h) does not bar an award of retroactive seniority status to victims of that discriminatory practice. Here the suggested exception to the TWA-IAM seniority system would not be remedial; the operation of the seniority system itself is said to violate Title VII. In such circumstances, § 703(h) unequivocally mandates that there is no statutory violation in the absence of a showing of discriminatory purpose. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 558-560, 97 S.Ct. 1885, 1889-1890, 52 L.Ed.2d 571 (1977).
14
Despite its hyperbole and rhetoric, the dissent appears to agree with at least it stops short of challenging the fundamental proposition that Title VII does not require an employer and a union who have agreed on a seniority system to deprive senior employees of their seniority rights in order to accommodate a junior employee's religious practices. This is the principal issue on which TWA and the union came to this Court. The dissent is thus reduced to (1) asserting that the statute requires TWA to accommodate Hardison even though substantial expenditures are required to do so; and (2) advancing its own view of the record to show that TWA could have done more than it did to accommodate Hardison without violating the seniority system or incurring substantial additional costs. We reject the former assertion as an erroneous construction of the statute. As for the latter, we prefer the findings of the District Judge who heard the evidence. Thus, the dissent suggests that through further efforts TWA or the union might have arranged a temporary or permanent job swap within the seniority system, despite the District Court's express finding, supported by the record, that "(t)he seniority provisions . . . precluded the possibility of plaintiff's changing his shift." 375 F.Supp., at 884. Similarly, the dissent offers two alternatives sending Hardison back to Building 1 or allowing him to work extra days without overtime pay that it says could have been pursued by TWA or the union, even though neither of the courts below even hinted that these suggested alternatives would have been feasible under the circumstances. Furthermore, Buildings 1 and 2 had separate seniority lists, and insofar as the record shows, a return to Building 1 would not have solved Hardison's problems. Hardison himself testified that he "gave up" his Building 1 seniority when he came to Building 2, App. 104, and that the union would not accept his early return to Building 1 in part "because the problem of seniority came up again." Id., 71. We accept the District Court's findings that TWA had done all that it could do to accommodate Hardison's religious beliefs without either incurring substantial costs or violating the seniority rights of other employees. See 375 F.Supp., at 891.
15
The dissent argues that "the costs to TWA of either paying overtime or not replacing respondent would (not) have been more than de minimis." Post, at 92 n. 6. This ignores, however, the express finding of the District Court that "(b)oth of these solutions would have created an undue burden on the conduct of TWA's business", 375 F.Supp., at 891, and it fails to take account of the likelihood that a company as large as TWA may have many employees whose religious observances, like Hardison's, prohibit them from working on Saturdays or Sundays.
1
The Court's statement that in promulgating the second guidelines "(t)he EEOC . . . did not purport to change the view expressed in its 1966 guidelines that work schedules generally applicable to all employees may not be unreasonable," ante, at 72 n. 7, is incomprehensible. The preface to the later guidelines, 32 Fed.Reg. 10298 (1967), states that the "Commission hereby amends § 1605.1, Guidelines on Discrimination Because of Religion. . . . Section 1605.1 as amended shall read as follows . . . ." Thus the later guidelines expressly repealed the earlier guidelines. Moreover, the example of "undue hardship" given in the new guidelines and quoted in the text makes clear that the Commission believed, contrary to its earlier view, that in certain instances employers would be required to excuse employees from work for religious observances.
In its decisions subsequent to the formulation of the guidelines, the Commission has consistently held that employers must accommodate Sabbath observances where substitute employees are available. Compare CCH EEOC Decisions (1973) PP 6060, 6154, with, e.g., PP 6120, 6310, 6367.
2
Many of the cases are collected in Annot., 22 A.L.R. Fed. 580 (1975). For a perceptive discussion of the issues posed by the cases see Note, Accommodation of an Employee's Religious Practices Under Title VII, 1976 U.Ill.L. Forum 867.
3
Because of the view I take of the facts, see Part II, infra, I find it unnecessary to decide how much cost an employer must bear before he incurs "undue hardship." I also leave for another day the merits of any constitutional objections that could be raised if the law were construed to require employers (or employees) to assume significant costs in accommodating.
4
The exemption here, like those we have upheld, can be claimed by any religious practitioner, a term that the EEOC has sensibly defined to include atheists, e. g., CCH EEOC Decisions (1973) P 6316, see also Young v. Southwestern Savings & Loan Assn., 509 F.2d 140 (CA5 1975), and persons not belonging to any organized sect but who hold " '(a) sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption,' " CCH Employment Practices P 6500, quoting United States v. Seeger, 380 U.S. 163, 176, 85 S.Ct. 850, 859, 13 L.Ed.2d 733 (1965). The purpose and primary effect of requiring such exemptions is the wholly secular one of securing equal economic opportunity to members of minority religions. Cf., e. g., Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). And the mere fact that the law sometimes requires special treatment of religious practitioners does not present the dangers of "sponsorship, financial support, and active involvement of the sovereign in religious activity," against which the Establishment Clause is principally aimed, Walz v. Tax Comm'n, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970).
5
It is true that these are the only options the Court of Appeals discussed. But that court found that TWA could have adopted these options without undue hardship; once that conclusion is rejected it is incumbent on this Court to decide whether any other alternatives were available that would not have involved such hardship.
6
I entertain grave doubts on both factual and legal grounds about the validity of the Court's rejection of the options it considers. As a matter of fact, I do not believe the record supports the Court's suggestion that the costs to TWA of either paying overtime or not replacing respondent would have been more than de minimis. While the District Court did state, as the Court notes, ante, at 84 n. 15, that both alternatives "would have created an undue burden on the conduct of TWA's business," 375 F.Supp., at 891, the court did not explain its understanding of the phrase "undue burden," and may have believed that such a burden exists whenever any cost is incurred by the employer, no matter how slight. Thus the District Court's assertion falls far short of a factual "finding" that the costs of these accommodations would be more than de minimis. Moreover, the record is devoid of any evidence documenting the extent of the "efficiency loss" TWA would have incurred had it used a supervisor or an already scheduled employee to do respondent's work, and while the stipulations make clear what overtime would have cost, the price is far from staggering: $150 for three months, at which time respondent would have been eligible to transfer back to his previous department. The Court's suggestion that the cost of accommodation must be evaluated in light of the "likelihood that . . . TWA may have many employees whose religious observances . . . prohibit them from working on Saturdays or Sundays," ante, at 84 n. 15, is not only contrary to the record, which indicates that only one other case involving a conflict between work schedules and Sabbath observance had arisen at TWA since 1945, Tr. 312-314, but also irrelevant, since the real question is not whether such employees exist but whether they could be accommodated without significant expense. Indeed, to the extent that TWA employed Sunday as well as Saturday Sabbatarians, the likelihood of accommodation being costly would diminish, since trades would be more feasible.
As a matter of law, I seriously question whether simple English usage permits "undue hardship" to be interpreted to mean "more than de minimis cost," especially when the examples the guidelines give of possible undue hardship is the absence of a qualified substitute, supra, at 85-86, I therefore believe that in the appropriate case we would be compelled to confront the constitutionality of requiring employers to bear more than de minimis costs. The issue need not be faced here, however, since an almost cost-free accommodation was possible.
7
Wilbur Stone, Director of Industrial Relations, Technical Service, at TWA confirmed Kussman's testimony. App. 157-158. In its Response to Plaintiff's Suggested Findings of Fact, TWA conceded that it "did not attempt to find a replacement for plaintiff." App. in No. 74-1424 (CA 6), p. 191, P 3(1).
8
The Court relies, ante, at 78, on the District Court's conclusory assertion that "(a)ny shift or change was impossible within the seniority framework". 375 F.Supp., at 889. But the District Court also found that "TWA did not take part in the search for employees willing to swap shifts . . . and it was admitted at trial that the Union made no real effort". Id., at 888. Thus, the District Court's statement concerning the impact of "the seniority framework" lends no support to the Court's assertion that there were no volunteers. See also n. 10, infra.
9
Respondent lost the non-Sabbath shift when an employee junior to him went on vacation. The vacation was to last only two weeks, however, and the record does not explain why respondent did not regain his shift at the end of that time.
10
If, as appears likely, no one senior to the substitute employee desired respondent's Sabbath assignment or his Thursday-Monday shift, then the substitute could have transferred to respondent's position without depriving anyone of his or her seniority expectations. Similarly, if, as also appears probable, no one senior to respondent desired the substitute's spot, respondent could have assumed it. Such a trade would not have deprived any employee of seniority expectations. The trade apparently still would have violated the collective-bargaining agreement, however, since the agreement authorized transfers only to vacant jobs. This is undoubtedly what the District Court meant when it found that "the seniority framework" precluded shift changes. See n. 8, supra. Indeed, the first time in the District Court's opinion that such a finding appears, it is preceded by the finding that "there were no jobs open for bid". 375 F.Supp., at 884.
Even if a trade could not have been arranged without disrupting seniority expectations TWA could have requested the Union Relief Committee to approve an exemption. The record reveals that the Committee's function was to ameliorate the rigidity of the system, App. 130, and that on at least one occasion it had approved a permanent transfer apparently outside the seniority system, id., at 144.
11
The Court states, ante, at 83 n. 14, that because of TWA's departmental seniority system, such a transfer "would not have solved Hardison's problems." But respondent testified without contradiction that had he returned to his previous department he would have regained his seniority in that department, and thereby could have avoided work on his Sabbath. App. 70-71. According to respondent, the only objection that was raised to this solution was that it violated the rule prohibiting transfers twice within six months. Ibid.
12
The accommodations would have disadvantaged respondent to some extent, but since he suggested both options I do not consider whether an employer would satisfy his duty to accommodate by offering these choices to an unwilling employee. Cf. Draper v. United States Pipe & Foundry Co., 527 F.2d 515 (CA6 1975) (employer does not discharge his duty to accommodate by offering to transfer an electrician to an unskilled position).
13
Of course, the accommodations discussed in the text would have imposed some administrative inconvenience on TWA. Petitioners do not seriously argue, however, that this consequence of accommodation makes the statute violative of the Establishment Clause. Were such an argument to be made, our prior decision upholding exemptions from state-created duties, see supra, at 90, would provide a complete answer, since the exemptions we have sustained have placed not inconsiderable burdens on private parties. For example, the effect of excusing conscientious objectors from military conscription is to require a nonobjector to serve instead, yet we have repeatedly upheld this exemption. E. g., Selective Draft Law Cases, 245 U.S. 366, 389-390, 38 S.Ct. 159, 165, 62 L.Ed. 349 (1918). See also Gallagher v. Crown Kosher Market, 366 U.S. 617, 627, 81 S.Ct. 1122, 1127, 6 L.Ed.2d 536 (1961) (upholding law prohibiting private citizens from engaging in specified activities within a fixed distance from places of public worship).
14
Ironically, the fiscal costs to society of today's decision may exceed the costs that would accrue if employers were required to make all accommodations without regard to hardship, since it is clear that persons on welfare cannot be denied benefits because they refuse to take jobs that would prevent them from observing religious holy days, see Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).
| 12
|
432 U.S. 137
97 S.Ct. 2207
53 L.Ed.2d 168
Garland JEFFERS, Petitioner,v.UNITED STATES.
No. 75-1805.
Argued March 21, 1977.
Decided June 16, 1977.
Rehearing Denied Oct. 3, 1977. See 434 U.S. 880, 98 S.Ct. 241.
Syllabus
A federal grand jury returned two indictments against petitioner for offenses under 21 U.S.C. One charged him and nine others with violating § 846 by conspiring to distribute heroin and cocaine during a specified period in violation of § 841(a)(1), the indictment specifying, inter alia, that the conspiracy was to be accomplished by petitioner's assumption of leadership of a certain organization, by distribution of controlled substances, and by acquisition of substantial sums of money through such distribution. The other charged petitioner alone with violating § 848, which prohibits conducting a continuing criminal enterprise to violate the drug laws, by his distributing and possessing with intent to distribute heroin and cocaine, in violation of § 841(a)(1) during the same specified period, the indictment alleging that he had undertaken the distribution "in concert" with five or more others, with respect to whom he occupied the position of organizer and supervisor, and that as a result of the distribution he had obtained a substantial income. The court denied a motion by the Government to consolidate the indictments for trial, which the petitioner and his codefendants had opposed on the grounds that neither the parties nor the charges were the same and that, based on the overt acts charged, much of the § 846 evidence would not inculpate petitioner and would therefore be inadmissible against him on the § 848 charge. Petitioner and six codefendants were first tried and found guilty on the § 846 indictment, petitioner receiving the maximum sentence applicable to him of 15 years in prison, a $25,000 fine, and three-year special parole term, and the conviction was affirmed on appeal. Petitioner then moved to dismiss the § 848 indictment on the ground that in the § 846 trial he had already been placed in jeopardy for the same offense and that the "same evidence" rule of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, barred the second prosecution since a § 846 conspiracy was a lesser included offense of a § 848 continuing criminal enterprise. Following denial of petitioner's motion on the ground that the offenses were separate, petitioner was tried and found guilty of the § 848 offense, and was given the maximum sentence for a first offender, viz., life imprisonment and a $100,000 fine, to run consecutively with the § 846 sentence. The Court of Appeals, although concluding that § 846 was a lesser included offense of § 848 and that the earlier conviction would normally under Blockburger bar the subsequent prosecution, held that Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616, created a new double jeopardy rule applicable only to complex statutory crimes, where greater and lesser offenses could be separately punished if, as here, Congress so intended. Petitioner challenged the Iannelli interpretation and also contended that the Double Jeopardy Clause was violated by the prosecution on the greater offense and conviction of the lesser and that he had not waived the double jeopardy issue. Held : The judgment is affirmed in part, vacated in part, and remanded. Pp. 147-158; 160.
532 F.2d 1101, affirmed in part, vacated in part, and remanded.
Mr. Justice BLACKMUN, joined by THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice REHNQUIST, concluded:
1. Petitioner's action in opposing the Government's motion to consolidate the indictments for trial deprived him of any right he might have had against consecutive trials and the Government was therefore entitled to prosecute petitioner for the § 848 offense. This result is an exception to the rule established in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187, that the Double Jeopardy Clause prohibits the trial of a defendant for a greater offense after he has been convicted of a lesser included offense, being no different from other situations where a defendant enjoys protection under the Double Jeopardy Clause but for one reason or another may be retried. Here petitioner, who could have been tried in one proceeding, chose not to adopt that course and therefore was solely responsible for the separate prosecutions. Pp. 147-154.
2. It cannot be assumed that Congress intended to impose cumulative penalties under §§ 846 and 848, and petitioner is therefore entitled to have the fine imposed at the second trial reduced so that the two fines together do not exceed $100,000. Pp. 154-158.
Mr. Justice WHITE concluded that Iannelli v. United States, supra, controls this case and therefore concurs in the judgment with respect to petitioner's conviction. P. 158.
Mr. Justice STEVENS, joined by Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL, concurs in the judgment to the extent that it vacates the cumulative fines. P. 160.
Stephen C. Bower, Kentland, Ind., for petitioner.
William F. Sheehan, III, Washington, D. C., for respondent.
Mr. Justice BLACKMUN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice REHNQUIST join.
1
This case involves the extent of the protection against multiple prosecutions afforded by the Double Jeopardy Clause of the Fifth Amendment, under circumstances in which the defendant opposes the Government's efforts to try charges under 21 U.S.C. §§ 846 and 848 in one proceeding. It also raises the question whether § 846 is a lesser included offense of § 848. Finally, it requires further explication of the Court's decision in Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).
2
* A. According to evidence presented at trial, petitioner Garland Jeffers was the head of a highly sophisticated narcotics distribution network that operated in Gary, Ind., from January 1972 to March 1974. The "Family," as the organization was known, originally was formed by Jeffers and five others and was designed to control the local drug traffic in the city of Gary. Petitioner soon became the dominant figure in the organization. He exercised ultimate authority over the substantial revenues derived from the Family's drug sales, extortionate practices, and robberies. He disbursed funds to pay salaries of Family members, commissions of street workers, and incidental expenditures for items such as apartment rental fees, bail bond fees, and automobiles for certain members. Finally, he maintained a strict and ruthless discipline within the group, beating and shooting members on occasion. The Family typically distributed daily between 1,000 and 2,000 capsules of heroin. This resulted in net daily receipts of about $5,000, exclusive of street commissions. According to what the Court of Appeals stated was "an extremely conservative estimate,"1 petitioner's personal share from the operations exceeded a million dollars over the two-year period.
3
On March 18, 1974, a federal grand jury for the Northern District of Indiana returned two indictments against petitioner in connection with his role in the Family's operations. The first, No. H-CR-74-56, charged petitioner and nine others with an offense under 21 U.S.C. § 846,2 by conspiring to distribute both heroin and cocaine during the period between November 1, 1971, and the date of the indictment, in violation of 21 U.S.C. § 841(a)(1).3 App. 5- 11. The indictment specified, among other things, that the conspiracy was to be accomplished by petitioner's assumption of leadership of the Family organization, by distribution of controlled substances, and by acquisition of substantial sums of money through the distribution of the controlled substances. Id., at 6. The second indictment, No. H-CR-74-57, charged petitioner alone with a violation of 21 U.S.C. § 848, which prohibits conducting a continuing criminal enterprise to violate the drug laws.4 Like the first, or conspiracy, indictment, this second indictment charged that petitioner had distributed and possessed with intent to distribute both heroin and cocaine, in violation of § 841(a)(1), again between November 1, 1971, and the date of the indictment. As required by the statute, the indictment alleged that petitioner had undertaken the distribution "in concert with five or more other people with respect to whom he occupied a position of organizer, supervisor and manager," and that as a result of the distribution and other activity he had obtained substantial income. App. 3-4.
4
Shortly after the indictments were returned, the Government filed a motion for trial together, requesting that the continuing-criminal-enterprise charge be tried with the general conspiracy charges against petitioner and his nine codefendants. Id., at 12-14. The motion alleged that joinder would be proper under Fed.Rule Crim.Proc. 8, since the offenses charged were of the same or similar character and they were based on the same acts or transactions constituting parts of a common scheme or plan. It also represented that much of the evidence planned for the § 848 trial was based on the same transactions as those involved in the § 846 case. Consequently, it argued that joinder was appropriate and within the court's power pursuant to Fed.Rule Crim.Proc. 13.
5
The defendants in the § 846 case filed a joint objection to the Government's motion. App. 15-24. Petitioner and his nine codefendants argued generally that joinder would be improper under Fed.Rules Crim.Proc. 8 and 14, since neither the parties nor the charges were the same. The codefendants were particularly concerned about the probable effect of the evidence that would be introduced to support the continuing-criminal-enterprise charge and about the jury's ability to avoid confusing the two cases. Another argument in the objection focused directly on petitioner.5 It noted that the § 846 indictment charged 17 overt acts, but that petitioner was named in only 10 of them, and was alleged to have participated actively in only 9. Thus, the argument went, it was likely that much of the evidence in the conspiracy trial would not inculpate petitioner and would therefore be inadmissible against him in the continuing-criminal-enterprise trial. Although a severance of the conspiracy charges against petitioner from those against the nine codefendants might have alleviated this problem, petitioner never made such a motion under Rule 14. On May 7, the court denied the Government's motion for trial together and thereby set the stage for petitioner's first trial on the conspiracy charges.
6
B. The trial on the § 846 indictment took place in June 1974. A jury found petitioner and six of his codefendants guilty. Petitioner received the maximum punishment applicable to him under the statute 15 years in prison, a fine of $25,000, and a 3-year special parole term.6 The Court of Appeals affirmed the conviction, 520 F.2d 1256 (CA7 1975), and this Court denied certiorari, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976).7
7
While the conspiracy trial and appeal were proceeding, petitioner was filing a series of pretrial motions in the pending criminal-enterprise case. When it appeared that trial was imminent, petitioner filed a motion to dismiss the indictment on the ground that in the conspiracy trial he already had been placed in jeopardy once for the same offense. He argued both that the two indictments arose out of the same transaction, and therefore the second trial should be barred under that theory of double jeopardy, and that the "same evidence" rule of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), should bar the second prosecution, since a § 846 conspiracy was a lesser included offense of a § 848 continuing criminal enterprise.8 To forestall the Government's anticipated waiver argument, petitioner asserted that waiver was impossible, since his objection to trying the two counts together was based on his Sixth Amendment right to a fair trial, and his opposition to the § 848 trial was based on his Fifth Amendment double jeopardy right. A finding of waiver, according to his argument, would amount to penalizing the exercise of one constitutional right by denying another. App. 25-27.
8
The Government, in its response to the motion to dismiss, asserted that §§ 846 and 848 were separate offenses, and for this reason petitioner would not be placed twice in jeopardy by the second trial.9 The District Court agreed with this analysis and denied petitioner's motion shortly before the second trial began.
9
At the second trial, the jury found petitioner guilty of engaging in a continuing criminal enterprise. Again, he received the maximum sentence for a first offender: life imprisonment and a fine of $100,000. See n. 4, supra. The judgment specified that the prison sentence and the fine were "to run consecutive with sentence imposed in H-CR-74-56 (the conspiracy case)." Record, Doc. 105. Thus, at the conclusion of the second trial, petitioner found himself with a life sentence without possibility of probation, parole, or suspension of sentence, and with fines totaling $125,000.10
10
On appeal, the conviction and sentence were upheld. 532 F.2d 1101 (CA7 1976). The Court of Appeals concluded that § 846 was a lesser included offense of § 848, since the continuing-criminal-enterprise statute expressly required proof that the accused had acted in concert with five or more other persons. In the court's view, this requirement was tantamount to a proof of conspiracy requirement.11 Construing § 848 to require proof of agreement meant that all the elements of the § 846 offense had to be proved for § 848, in addition to the elements of a supervisory position and the obtaining of substantial income or resources;12 thus, §§ 846 and 848 satisfied the general test for less included offenses. Although the court stated that ordinarily conviction of a lesser included offense would bar a subsequent prosecution for the greater offense, relying on Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911); Blockburger v. United States, supra ; and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), it read Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), to create a new double jeopardy rule applicable only to complex statutory crimes.
11
The two statutes at issue in Iannelli were 18 U.S.C. § 371, the general federal conspiracy statute, and 18 U.S.C. § 1955, the statute prohibiting illegal gambling businesses involving five or more persons. Despite language in Iannelli seemingly to the contrary, 420 U.S., at 785 n. 17, 95 S.Ct., at 1293, the Court of Appeals stated that § 371 is a lesser included offense of § 1955. 532 F.2d, at 1109. The court attached no significance to the fact that § 1955 contains no requirement of action "in concert." It believed that Iannelli held that greater and lesser offenses could be punished separately if Congress so intended, and it adopted the same approach to the multiple-prosecution question before it. Finding that Congress, in enacting § 848, was interested in punishing severely those who made a substantial living from drug dealing, and that Congress intended to make § 848 an independent crime, the court concluded that §§ 846 and 848 were not the "same offense" for double jeopardy purposes. It therefore held that the conviction on the first indictment did not bar the prosecution on the second.
12
In his petition for certiorari, petitioner challenged the Court of Appeals' reading of Iannelli and suggested again that § 846 was a lesser included offense of § 848. He also contended that the Double Jeopardy Clause was violated by the prosecution on the greater offense after conviction for the lesser. Finally, he argued that he had not waived the double jeopardy issue. In addition to these issues, it appears that cumulative fines were imposed on petitioner, which creates a multiple-punishment problem. We granted certiorari. 429 U.S. 815, 97 S.Ct. 55, 50 L.Ed.2d 74 (1976). We consider first the multiple prosecution, lesser included offense, and waiver points, and then we address the multiple-punishment problem.
II
13
A. The Government's principal argument for affirming the judgment of the Court of Appeals is that Iannelli controls this case. Like the conspiracy and gambling statutes at issue in Iannelli, the conspiracy and continuing-criminal-enterprise statutes at issue here, in the Government's view, create two separate offenses under the "same evidence" test of Blockburger. The Government's position is premised on its contention that agreement is not an essential element of the § 848 offense, despite the presence in § 848(b)(2)(A) of the phrase "in concert with." If five "innocent dupes" each separately acted "in concert with" the ringleader of the continuing criminal enterprise, the Government asserts, the statutory requirement would be satisfied. Brief for United States 23.
14
If the Government's position were right, this would be a simple case. In our opinion, however, it is not so easy to transfer the Iannelli result, reached in the context of two other and different statutes, to this case. In Iannelli, the Court specifically noted: "Wharton's Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents." 420 U.S., at 785, 95 S.Ct., at 1293 (emphasis in original). Elaborating on that point, the Court stated: "The essence of the crime of conspiracy is agreement, . . . an element not contained in the statutory definition of the § 1955 offense." Id., at 785 n. 17, 95 S.Ct., at 1294. Because of the silence of § 1955 with regard to the necessity of concerted activity, the Court felt constrained to construe the statute to permit the possibility that the five persons "involved" in the gambling operation might not be acting together.13 See also Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489 (1946).
15
The same flexibility does not exist with respect to the continuing-criminal-enterprise statute. Section 848(b)(2)(A) restricts the definition of the crime to a continuing series of violations undertaken by the accused "in concert with five or more other persons." Clearly, then, a conviction would be impossible unless concerted activity were present. The express "in concert" language in the statutory definition quite plausibly may be read to provide the necessary element of "agreement" found wanting in § 1955. Even if § 848 were read to require individual agreements between the leader of the enterprise and each of the other five necessary participants, enough would be shown to prove a conspiracy. It would be unreasonable to assume that Congress did not mean anything at all when it inserted these critical words in § 848.14 In the absence of any indication from the legislative history or elsewhere to the contrary, the far more likely explanation is that Congress intended the word "concert" to have its common meaning of agreement in a design or plan. For the purposes of this case, therefore, we assume, arguendo, that § 848 does require proof of an agreement among the persons involved in the continuing criminal enterprise.15 So construed, § 846 is a lesser included offense of § 848, because § 848 requires proof of every fact necessary to show a violation under § 846 as well as proof of several additional elements.16
16
B. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 decided today, establishes the general rule that the Double Jeopardy Clause prohibits a State or the Federal Government from trying a defendant for a greater offense after it has convicted him of a lesser included offense. 432 U.S., at 168-169, 97 S.Ct., at 2226-2227. What lies at the heart of the Double Jeopardy Clause is the prohibition against multiple prosecutions for "the same offense." See United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975). Brown reaffirms the rule that one convicted of the greater offense may not be subjected to a second prosecution on the lesser offense, since that would be the equivalent of two trials for "the same offense." 432 U.S., at 168, 97 S.Ct., at 2226. See In re Nielsen, 131 U.S. 176, 187, 9 S.Ct. 672, 675, 33 L.Ed. 118 (1889). Because two offenses are "the same" for double jeopardy purposes unless each requires proof of an additional fact that the other does not, 432 U.S., at 168, 97 S.Ct., at 2226, it follows that the sequence of the two trials for the greater and the lesser offense is immaterial,17 and trial on a greater offense after conviction on a lesser ordinarily is just as objectionable under the Double Jeopardy Clause as the reverse order of proceeding.18 Cf. Waller v. Florida, 397 U.S., at 390, 90 S.Ct., at 1186. Contrary to the suggestion of the Court of Appeals, Iannelli created no exception to these general jeopardy principles for complex statutory crimes.19
17
The rule established in Brown, however, does have some exceptions. One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun. See Brown v. Ohio, 432 U.S., at 169 n. 7, 97 S.Ct., at 2227; Blackledge v. Perry, 417 U.S. 21, 28-29, and n. 7, 94 S.Ct. 2098, 2102-2103, 40 L.Ed.2d 628 (1974); Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). See also Ashe v. Swenson, 397 U.S. 436, 453 n. 7, 90 S.Ct. 1189, 1199, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring). This exception may also apply when the facts necessary to the greater were not discovered despite the exercise of due diligence before the first trial. Ibid.
18
If the defendant expressly asks for separate trials on the greater and the lesser offenses, or, in connection with his opposition to trial together, fails to raise the issue that one offense might be a lesser included offense of the other, another exception to the Brown rule emerges. This situation is no different from others in which a defendant enjoys protection under the Double Jeopardy Clause, but for one reason or another retrial is not barred. Thus, for example, in the case of a retrial after a successful appeal from a conviction, the concept of continuing jeopardy on the offense for which the defendant was convicted applies, thereby making retrial on that offense permissible. See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In a slightly different context, the defendant's right to have the need for a retrial measured by the strict "manifest necessity" standard of United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), does not exist if the mistrial was granted at the defendant's request. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Both the trial after the appeal and the trial after the mistrial are, in a sense, a second prosecution for the same offense, but, in both situations, the policy behind the Double Jeopardy Clause does not require prohibition of the second trial. Similarly, although a defendant is normally entitled to have charges on a greater and a lesser offense resolved in one proceeding, there is no violation of the Double Jeopardy Clause when he elects to have the two offenses tried separately and persuades the trial court to honor his election.20
19
C. In this case, trial together of the conspiracy and continuing- criminal-enterprise charges could have taken place without undue prejudice to petitioner's Sixth Amendment right to a fair trial.21 If the two charges had been tried in one proceeding, it appears that petitioner would have been entitled to a lesser included-offense-instruction. See Fed.Rule Crim.Proc. 31(c); Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973); cf. Sansone v. United States, 380 U.S. 343, 349-350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965). If such an instruction had been denied on the ground that § 846 was not a lesser included offense of § 848, petitioner could have preserved his point by proper objection. Nevertheless, petitioner did not adopt that course. Instead, he was solely responsible for the successive prosecutions for the conspiracy offense and the continuing-criminal-enterprise offense.22 Under the circumstances, we hold that his action deprived him of any right that he might have had against consecutive trials. It follows, therefore, that the Government was entitled to prosecute petitioner for the § 848 offense, and the only issue remaining is that of cumulative punishments upon such prosecution and conviction.
III
20
Although both parties, throughout the proceedings, appear to have assumed that no cumulative-punishment problem is present in this case,23 the imposition of the separate fines seems squarely to contradict that assumption.24 Fines, of course, are treated in the same way as prison sentences for purposes of double jeopardy and multiple punishment analysis. See North Carolina v. Pearce, 395 U.S. 711, 718 n. 12, 89 S.Ct. 2072, 2077, 23 L.Ed.2d 656 (1969). In this case, since petitioner received the maximum fine applicable to him under § 848, it is necessary to decide whether cumulative punishments are permissible for violations of §§ 846 and 848.
21
The critical inquiry is whether Congress intended to punish each statutory violation separately. See, e. g., Prince v. United States, 352 U.S. 322, 327, 77 S.Ct. 403, 406, 1 L.Ed.2d 370 (1957); Callanan v. United States, 364 U.S. 587, 594, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961); Milanovich v. United States, 365 U.S. 551, 554, 81 S.Ct. 728, 729, 5 L.Ed.2d 773 (1961). Cf. Bell v. United States, 349 U.S. 81, 82, 75 S.Ct. 620, 621, 99 L.Ed. 905 (1955). In Iannelli v. United States, the Court concluded that Congress did intend to punish violations of § 1955 separately from § 371 conspiracy violations. Since the two offenses were different, there was no need to go further. See 420 U.S., at 785-786, nn. 17-18, 95 S.Ct., at 1293-1294. See also Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). If some possibility exists that the two statutory offenses are the "same offense" for double jeopardy purposes, however, it is necessary to examine the problem closely, in order to avoid constitutional multiple-punishment difficulties. See North Carolina v. Pearce, 395 U.S., at 717, 89 S.Ct., at 2076; United States v. Wilson, 420 U.S., at 343, 95 S.Ct., at 1021.25
22
As petitioner concedes, Reply Brief for Petitioner 3, the first issue to be considered is whether Congress intended to allow cumulative punishment for violations of §§ 846 and 848. We have concluded that it did not, and this again makes it unnecessary to reach the lesser-included-offense issue.
23
Section 848 itself reflects a comprehensive penalty structure that leaves little opportunity for pyramiding of penalties from other sections of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Even for a first offender, the statute authorizes a maximum prison sentence of life, a fine of $100,000, and a forfeiture of all profits obtained in the enterprise and of any interest in, claim against, or property or contractual rights of any kind affording a source of influence over, the enterprise. §§ 848(a)(1), (2). The statute forbids suspension of the imposition or execution of any sentence imposed, the granting of probation, and eligibility for parole. § 848(c). In addition, § 848 is the only section in the statutes controlling drug abuse that provides for a mandatory minimum sentence. For a first offender, that minimum is 10 years. § 848(a)(1). A second or subsequent offender must receive a minimum sentence of 20 years, and he is subject to a fine of up to $200,000, as well as the forfeiture described above and the maximum of lifetime imprisonment. Ibid. Since every § 848 violation by definition also will involve a series of other felony violations of the Act, see §§ 848(b)(1), (2), there would have been no point in specifying maximum fines for the § 848 violation if cumulative punishment was to be permitted.
24
The legislative history of § 848 is inconclusive on the question of cumulative punishment.26 The policy reasons usually offered to justify separate punishment of conspiracies and underlying substantive offenses, however, are inapplicable to §§ 846 and 848. In Callanan v. United States, 364 U.S., at 593-594, 81 S.Ct., at 325, the Court summarized these reasons:
25
"(C)ollective criminal agreement partnership in crime presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise."
26
Accord, Iannelli v. United States, 420 U.S., at 778, 95 S.Ct., at 1290.
27
As this discussion makes clear, the reason for separate penalties for conspiracies lies in the additional dangers posed by concerted activity. Section 848, however, already expressly prohibits this kind of conduct. Thus, there is little legislative need to further this admittedly important interest by authorizing consecutive penalties from the conspiracy statute.
28
Our conclusion that Congress did not intend to impose cumulative penalties under §§ 846 and 848 is of minor significance in this particular case. Since the Government had the right to try petitioner on the § 848 indictment, the court had the power to sentence him to whatever penalty was authorized by that statute. It had no power, however, to impose on him a fine greater than the maximum permitted by § 848. Thus, if petitioner received a total of $125,000 in fines on the two convictions, as the record indicates, he is entitled to have the fine imposed at the second trial reduced so that the two fines together do not exceed $100,000.
29
The judgment of the Court of Appeals, accordingly, is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion.
30
It is so ordered.
31
Mr. Justice WHITE, concurring in the judgment in part and dissenting in part.
32
Because I agree with the United States that Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), controls this case, I for that reason concur in the judgment of the Court with respect to petitioner's conviction. For the same reason and because the conspiracy proved was not used to establish the continuing criminal enterprise charged, I dissent from the Court's judgment with respect to the fines and from Part III of the plurality's opinion.
33
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL join, dissenting in part, and concurring in the judgment in part.
34
There is nothing novel about the rule that a defendant may not be tried for a greater offense after conviction of a lesser included offense. It can be traced back to Blackstone, and "has been this Court's understanding of the Double Jeopardy Clause at least since In re Nielsen (, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118,) was decided in 1889," Brown v. Ohio, 432 U.S., at 168, 97 S.Ct., at 2226.1 I would not permit the prosecutor to claim ignorance of this ancient rule, or to evade it by arguing that the defendant failed to advise him of its existence or its applicability.
35
The defendant surely cannot be held responsible for the fact that two separate indictments were returned,2 or for the fact that other defendants were named in the earlier indictment, or for the fact that the Government elected to proceed to trial first on the lesser charge.3 The other defendants had valid objections to the Government's motion to consolidate the two cases for trial.4 Most trial lawyers will be startled to learn that a rather routine joint opposition to that motion to consolidate has resulted in the loss5 of what this Court used to regard as "a vital safeguard in our society, one that was dearly won and one that should continue to be highly valued," Green v. United States, 355 U.S. 184, 198, 78 S.Ct. 221, 229, 2 L.Ed.2d 199.6
36
It is ironic that, while the State's duty to give advice to an accused is contracting, see, e. g., Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 51 L.Ed.2d 714 a new requirement is emerging that the accused, in order to preserve a constitutional right, must inform the prosecution about the legal consequences of its acts. Even the desirability of extending Mr. Jeffers' incarceration does not justify this unique decision.7
37
While I concur in the judgment to the extent that it vacates the cumulative fines, I respectfully dissent from the affirmance of the conviction.
1
532 F.2d 1101, 1105 (CA7 1976).
2
Section 846 provides:
Any person who attempts or conspires to commit any offense defined in this subchapter (Control and Enforcement) is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy."
3
Section 841(a)(1) provides:
"(a) . . . Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally
"(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance."
Heroin is classified as a Schedule I narcotic drug controlled substance. 21 U.S.C. § 812(c) (Sch. I) (b)(10); 21 CFR § 1308.11(c)(11) (1976). Cocaine is a Schedule II narcotic drug controlled substance. 21 U.S.C. § 812(c) (Sch. II) (a)(4); 21 CFR § 1308.12(b)(4) (1976).
4
Section 848 provides, in relevant part:
"(a) . . . (1) Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 10 years and which may be up to life imprisonment, to a fine of not more than $100,000, and to the forfeiture prescribed in paragraph (2). . . .
"(2) Any person who is convicted under paragraph (1) of engaging in a continuing criminal enterprise shall forfeit to the United States
"(A) the profits obtained by him in such enterprise, and
"(B) any of his interest in, claim against, or property or contractual rights of any kind affording a source of influence over, such enterprise.
"(b) . . . For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if
"(1) he violates any provision of this subchapter or subchapter II of this chapter (Import and Export) the punishment for which is a felony, and
"(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter
"(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and,
"(B) from which such person obtains substantial income or resources.
"(c) . . . In the case of any sentence imposed under this section, imposition or execution of such sentence shall not be suspended, probation shall not be granted, and section 4202 of Title 18 (repealed March 15, 1976, by Pub.L. 94-233, 90 Stat. 219, and replaced by a new § 4205, each relating to eligibility of prisoners for parole) . . . shall not apply."
5
The dissenters attempt to undercut the force of petitioner's opposition to trial together by asserting that the motion "gave relatively little emphasis to arguments relating to petitioner alone." Post, at 159 n. 4. On the contrary, the memorandum supporting the defendants' motion took pains to point out which objections to trial together were relevant to Jeffers alone. See App. 18, 22-23. Indeed, the last argument before the conclusion stated:
"(I)t is likely that much of the evidence which will be presented in the conspiracy trial does not 'directly' inculpate the defendant, GARLAND JEFFERS, and would, therefore, be inadmissible against him in the 'continuing criminal enterprise' indictment unless a direct link could be established. All of the said overt acts would, however, be admissible, or at least arguably so, in the conspiracy trial. The prejudice to the defendant, JEFFERS, is therefore, imminent and clear." Id., at 22.
In addition to the arguments relating specifically to Jeffers, the memorandum contained a number of points designed to apply equally to all defendants. We see no reason to read it as implicitly excluding JEFFERS.
6
As indicated in n. 2, supra, § 846 provides that the sentence for the conspiracy offense shall not exceed the maximum punishment prescribed for the substantive offense the commission of which was the object of the conspiracy. The maximum punishment for a first offender for a violation of § 841(a)(1), in which a Schedule I or II narcotic drug is the controlled substance in question, is a term of imprisonment of not more than 15 years, a fine of not more than $25,000, or both. § 841(b)(1)(A).
7
After this Court's refusal to review the decision on certiorari, petitioner filed a motion under 28 U.S.C. § 2255 for postconviction relief. The District Court denied the motion, the Court of Appeals affirmed, 544 F.2d 523, and this Court again denied certiorari. 430 U.S. 935, 97 S.Ct. 1561, 51 L.Ed.2d 781 (1977).
8
In his opposition to the Government's motion for trial together, however, when he joined the argument that the jury would be confused by consolidation, petitioner apparently had argued in favor of construing the statutes to create separate offenses. App. 19. He also joined the argument that "identity of charges" was lacking. Id., at 15.
9
Language in the Government's memorandum appears to concede that § 846 is a lesser included offense: "Title 21, United States Code, Section 848, requires proof of the elements previously set out in Section 846 but additional elements are required." App. 34. It is unnecessary for present purposes to rely on any such concession.
10
Nothing in the record of Case No. H-CR-74-56 suggests that the $25,000 fine was credited against the $100,000 fine. The record of Case No. H-CR-74-57 expressly indicates that the contrary was true, and we proceed on that assumption.
11
The District Court actually instructed the jury that the Government might prove that the object of the continuing criminal enterprise was to commit a violation under § 846, the conspiracy statute, rather than to violate § 841(a) (1). App. 45. The court therefore gave a complete conspiracy charge to the jury. Id., at 46-48. The Government argues that this instruction was erroneous. Without resolving that issue or exploring the implications of the Government's position, we merely note that the District Court's decision to give the instruction reflects the conceptual closeness of the two statutes.
12
Section 848 by its terms covers violations of both subchapter I of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and subchapter II of the Act, while § 846 deals only with subchapter I. The exact counterpart to § 846, however, is § 963 in subchapter II. In this case, no one disputes the fact that only subchapter I is involved.
13
The Court's use of the term "concerted activity" to describe § 1955's requirement that five or more persons must be involved in the gambling business, 420 U.S., at 790, 95 S.Ct., at 1296, does not indicate a contrary understanding. At that point in the opinion the Court simply was addressing its attention to the reason why § 1955 requires the participation of a significant number of persons in the business. As a practical matter, the group involved often will act in concert. This, however, is not necessarily the case a fact the Court acknowledged in its Blockburger analysis, 420 U.S., at 785 n. 17, 95 S.Ct., at 1293.
14
The legislative history, the use that Congress has made of the phrase "in concert" in other statutes, and the plain meaning of that term all support the interpretation suggested for § 848. The House Report on H.R. 18583, which eventually became Pub.L. 91-513, the Comprehensive Drug Abuse Prevention and Control Act of 1970, assumed that the meaning of "in concert" was clear, since it never defined the phrase further. See, e. g., H.R.Rep.No.91-1444, Pt. 1, p. 50 (1970). Even the writers of additional views did not include an objection to the nondefinition of the term in their criticisms of other aspects of the continuing-criminal-enterprise section of the law. The Senate Report on S. 3246, the Senate version of the same law, did shed some light on the problem. See S.Rep.No.91-613 (1969). In the Section-by-Section Analysis of the bill, the report states:
"Subsection (f) of this section sets out the criteria which must be met
before a defendant can be deemed involved in a continuing criminal enterprise. The court must find by a preponderance of evidence that the defendant acted in concert with or conspired with at least five other persons engaged in a continuing criminal enterprise involving violations of the act." Id., at 28 (emphasis added).
The actual language of the bill, however, used the words "in concert with" to cover both concerted action and conspiracy. Id., at 121. Thus, it is apparent that the Senate understood the term "in concert" to encompass the concept of agreement.
The debates reveal that Congress was concerned with providing severe penalties for professional criminals when it included the continuing-criminal-enterprise section in the statute. See, e. g., 116 Cong.Rec. 995 (1970) (remarks of Sen. Dodd); id., at 1181 (remarks of Sen. Thurmond); id., at 33631 (remarks of Cong. Weicker); id., at 33314 (remarks of Cong. Bush). This concern undercuts the Government's argument that one professional criminal might have "conned" five innocent dupes into working for him, all of them being unaware that the purpose of the work was to conduct an illegal drug business, and none agreeing to do so.
When the phrase "in concert" has been used in other statutes, it has generally connoted cooperative action and agreement. See, e. g., 2 U.S.C. §§ 434(b)(13), 441a(a)(7)(B)(i) (1976 ed.) (Federal Election Campaign Act Amendments of 1976); 7 U.S.C. § 13c(a) (1970 ed., Supp. V) (Commodity Futures Trading Commission Act of 1974 liability as principal); 10 U.S.C. § 894(a) (Code of Military Justice mutiny or sedition); 29 U.S.C. §§ 52, 104, 105 (Norris-LaGuardia Act); 46 U.S.C. § 1227 (Merchant Marine Act agreements with other carriers forbidden); 49 U.S.C. § 322(b)(1) (Interstate Commerce Act, Part II unlawful operation of motor carriers). This suggests that Congress intended the same words to have the same meaning in § 848. Even Iannelli did not require the word "conspiracy" to be spelled out in the statutory definition, as long as the concept of agreement was included therein. 420 U.S., at 785 n. 17, 95 S.Ct., at 1293. Since the word "concert" commonly signifies agreement of two or more persons in a common plan or enterprise, a clearly articulated statement from Congress to the contrary would be necessary before that meaning should be abandoned.
15
In connection with this assumption, we note that until the Court of Appeals in this case found that § 846 was a lesser included offense of § 848, no other appellate court had considered the issue. Indeed, after Iannelli it would have been fair to assume that the question was open. The dissenting opinion here is based on the premise that it was beyond dispute that §§ 846 and 848 were so related. From there, it is easy to reason that the prosecutor should be held accountable for the presumed error that occurred. Because the premise fails, however, this case cannot be fit so neatly into the niche that would be fashioned by the dissent. Unless it is plain that two offenses are "the same" for double jeopardy purposes, the parties and the court should be entitled to assume that successive prosecutions are an available option. This assumption would only be reinforced if the defendant affirmatively asked the court to require two proceedings, and in connection with his request he actively sought postponement of the second trial, as Jeffers did. Under the circumstances, it is hardly accurate to say, as the dissent does, that Jeffers was being required to give legal advice to the prosecution. On the contrary, he was simply under an obligation to preserve his double jeopardy point properly, by alerting both court and prosecution to the existence of a complex, unsettled issue.
16
The two indictments in this case are remarkably similar in detail. It is clear that the identical agreement and transactions over the identical time period were involved in the two cases. It is also quite clear that none of the participants were "innocent dupes."
17
It is also possible to argue that a second trial on a greater offense is prohibited by the Double Jeopardy Clause because the defendant is necessarily placed twice in jeopardy on the lesser offense. The risk of conviction on the greater means nothing more than a risk of conviction upon proof of all the elements of the lesser plus proof of the additional elements needed for the greater. Brown v. Ohio, 432 U.S., at 167 n. 6, 97 S.Ct., at 2226, leaves consideration of the implications of this theory for another day.
18
Any adjustment in punishment for the fact that the defendant already has been punished for the lesser offense is not adequate to cure the injury suffered because of multiple prosecutions, since the double jeopardy problem inheres in the very fact of a second trial for the "same" offense. See Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 2103-2104, 40 L.Ed.2d 628 (1974); Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 1761, 26 L.Ed.2d 300 (1970).
19
The Government makes no attempt to defend the Court of Appeals' reading of Iannelli ; indeed, it states that that court misconstrued Iannelli. Brief for United States 22 n. 10.
20
The considerations relating to the propriety of a second trial obviously would be much different if any action by the Government contributed to the separate prosecutions on the lesser and greater charges. No hint of that is present in the case before us, since the Government affirmatively sought trial on the two indictments together.
Unlike the dissenters, we are unwilling to attach any significance to the fact that the grand jury elected to return two indictments against petitioner for the two statutory offenses. As the Court of Appeals' opinion made clear, before this case it was by no means settled law that § 846 was a lesser included offense of § 848. See 532 F.2d, at 1106-1111. See also Brief for United States 18-32; n. 15, supra. Even now, it has not been necessary to settle that issue definitively. See supra, at 149-150. If the position reasonably could have been taken that the two statutes described different offenses, it is difficult to ascribe any improper motive to the act of requesting two separate indictments. Furthermore, as noted supra, at 142, it was the Government itself that requested a joint trial on the two indictments, which also indicates that no sinister purpose was behind the formal method of proceeding.
21
Petitioner argues that a finding of waiver is inconsistent with the decision in Simmons v. United States, 390 U.S. 377, 389-394, 88 S.Ct. 967, 973-976, 19 L.Ed.2d 1247 (1968), where the Court held that a defendant could not be required to surrender his Fifth Amendment privilege against compulsory self-incrimination in order to assert an arguably valid Fourth Amendment claim. In petitioner's case, however, the alleged Hobson's choice between asserting the Sixth Amendment fair trial right and asserting the Fifth Amendment double jeopardy claim is illusory. Had petitioner asked for a Rule 14 severance from the other defendants, the case might be different. In that event, he would have given the court an opportunity to ensure that prejudicial evidence relating only to other defendants would not have been introduced in his trial. Assuming that a valid Fifth Amendment point was in the background, due to the relationship between §§ 846 and 848, petitioner could have had no complaint about a trial of the two charges together. No such motion, however, was made. Under the circumstances of this case, therefore, no dilemma akin to that in Simmons arose.
22
Petitioner's position is not strengthened merely because no one raised the multiple-prosecution point during the first proceeding. Since the Government's posture throughout this case has been that §§ 846 and 848 are separate offenses, it could not have been expected on its own to elect between them when its motion for trial together was denied. The right to have both charges resolved in one proceeding, if it exists, was petitioner's; it was therefore his responsibility to bring the issue to the District Court's attention.
23
Brief for Petitioner 21; Brief for United States 9. See, however, the Government's statement, Tr. of Oral Arg. 36: "(W)e submit, the Double Jeopardy Clause does not bar prosecution for the greater offense, provided, of course, that there was a conviction on the lesser included offense and provided that any punishment that he has suffered on the lesser offense be credited." Different considerations govern the propriety of addressing the cumulative-punishment issue, since petitioner, for obvious reasons, never affirmatively argued that the difference in the two statutes was so great as to authorize separate punishments, and he did argue implicitly that separate trials would be permissible. Even if the two indictments had been tried together, the cumulative-punishment issue would remain.
24
For present purposes, since petitioner is not eligible for parole at any time, there is no need to examine the Government's argument that the prison sentences do not present any possibility of cumulative punishment.
25
Cf. United States v. Gaddis, 424 U.S. 544, 549 n. 12, 96 S.Ct. 1023, 1026, 47 L.Ed.2d 222 (1976) (vacating convictions and sentences under 18 U.S.C. § 2113(a) in light of conviction under § 2113(d)).
26
The Congress was plainly interested in punishing the professional criminal severely when it passed § 848. See, e. g., S.Rep.No.91-613, pp. 2, 7 (1969); 116 Cong.Rec. 995, 1181, 1664 (1970) (remarks in Senate debate); id., at 33300-33301, 33304, 33314 (remarks in House debate). Taken alone, this might support an argument for cumulative penalties. The House Report, however, indicates that the penalty scheme of the continuing-criminal-enterprise section was to be separate from the rest of the penalties. H.R.Rep.No.91-1444, pt. 1, pp. 10-11 (1970). In light of these arguably conflicting conclusions from the legislative history, we see no reason to deviate from the result suggested by the structure of the statute itself.
1
As the Court notes in Brown, Nielsen cites an 1833 New Jersey case; that case in turn quotes Blackstone. State v. Cooper, 13 N.J.L. 361, 375. See 4 W. Blackstone, Commentaries *336.
2
The plurality implies that the result in this case would be different "if any action by the Government contributed to the separate prosecutions on the lesser and greater charges." Ante, at 152 n. 20. I wonder how the grand jury happened to return two separate indictments.
3
The Government retained the alternative of trying petitioner on both charges at once, while trying the other defendants separately for conspiracy. The prosecutor never attempted this course, and defense counsel not having had an opportunity to read today's plurality opinion had no reason to believe he had a duty to suggest it. Until today it has never been the function of the defense to give legal advice to the prosecutor.
4
When the Government attempted to obtain a joint trial on all the charges against all the defendants, the attorney representing all the defendants resisted the Government motion. He did so largely because of the possible prejudice to petitioner's codefendants, and gave relatively little emphasis to arguments relating to petitioner alone. See ante, at 142-143, n. 5.
5
It is quite clear from the plurality opinion that petitioner has been denied his constitutional rights. As that opinion states, it is "the general rule that the Double Jeopardy Clause prohibits a State or the Federal Government from trying a defendant for a greater offense after it has convicted him of a lesser included offense." Ante, at 150. And, as the plurality also demonstrates, that is precisely what happened here. Ante, at 147-150. Two additional facts, also noted by the plurality, clinch the double jeopardy claim: (1) petitioner was not only twice tried, but also twice punished for the same offense, ante, at 154-158; and (2) the instructions at the second trial required petitioner to defend against the lesser charge for a second time, ante, at 145 n. 11.
6
The following sentence by Mr. Justice Black is also worth remembering: "If such great constitutional protections are given a narrow, grudging application, they are deprived of much of their significance." Green, 355 U.S., at 198, 78 S.Ct., at 229.
7
The Court's disposition is especially troubling because eight Justices agree that petitioner's constitutional right was violated and only four are persuaded that he waived his double jeopardy objection.
| 01
|
432 U.S. 161
97 S.Ct. 2221
53 L.Ed.2d 187
Nathaniel BROWN, Petitioner,v.State of OHIO.
No. 75-6933.
Argued March 21, 1977.
Decided June 16, 1977.
Syllabus
The Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth held to bar prosecution and punishment for the crime of stealing an automobile following prosecution and punishment for the lesser included offense of operating the same vehicle without the owner's consent. Pp. 164-170.
(a) "(W)here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not," Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306. In line with that test, the Double Jeopardy Clause generally forbids successive prosecution and cumulative punishment for a greater and lesser included offense. Pp. 166-169.
(b) Here, though the Ohio Court of Appeals properly held that under state law joyriding (taking or operating a vehicle without the owner's consent) and auto theft (joyriding with the intent permanently to deprive the owner of possession) constitute "the same statutory offense" within the meaning of the Double Jeopardy Clause, it erroneously concluded that petitioner could be convicted of both crimes because the charges against him had focused on different parts of the 9-day interval between petitioner's taking of the car and his apprehension. There was still only one offense under Ohio law, and the specification of different dates in the two charges against petitioner cannot alter the fact that he was twice placed in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments. Pp. 169-170.
Reversed.
Robert Plautz, Cleveland, Ohio, for petitioner.
George J. Sadd, Cleveland, Ohio, for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment bars prosecution and punishment for the crime of stealing an automobile following prosecution and punishment for the lesser included offense of operating the same vehicle without the owner's consent.
2
* On November 29, 1973, the petitioner, Nathaniel Brown, stole a 1965 Chevrolet from a parking lot in East Cleveland, Ohio. Nine days later, on December 8, 1973, Brown was caught driving the car in Wickliffe, Ohio. The Wickliffe police charged him with "joyriding" taking or operating the car without the owner's consent in violation of Ohio Rev.Code Ann. § 4549.04(D) (1973, App. 342).1 The complaint charged that "on or about December 8, 1973, . . . Nathaniel H. Brown did unlawfully and purposely take, drive or operate a certain motor vehicle to wit; a 1965 Chevrolet . . . without the consent of the owner one Gloria Ingram . . . ." App. 3. Brown pleaded guilty to this charge and was sentenced to 30 days in jail and a $100 fine.
3
Upon his release from jail on January 8, 1974, Brown was returned to East Cleveland to face further charges, and on February 5 he was indicted by the Cuyahoga County grand jury. The indictment was in two counts, the first charging the theft of the car "on or about the 29th day of November 1973," in violation of Ohio Rev.Code Ann. § 4549.04(A) (1973, App. 342),2 and the second charging joyriding on the same date in violation of § 4549.04(D). A bill of particulars filed by the prosecuting attorney specified that
4
"on or about the 29th day of November, 1973, . . . Nathaniel Brown unlawfully did steal a Chevrolet motor vehicle, and take, drive or operate such vehicle without the consent of the owner, Gloria Ingram . . . ." App. 10.
5
Brown objected to both counts of the indictment on the basis of former jeopardy.
6
On March 18, 1974, at a pretrial hearing in the Cuyahoga County Court of Common Pleas, Brown pleaded guilty to the auto theft charge on the understanding that the court would consider his claim of former jeopardy on a motion to withdraw the plea.3 Upon submission of the motion, the court overruled Brown's double jeopardy objections. The court sentenced Brown to six months in jail but suspended the sentence and placed Brown on probation for one year.
7
The Ohio Court of Appeals affirmed. It held that under Ohio law the misdemeanor of joyriding was included in the felony of auto theft:
8
"Every element of the crime of operating a motor vehicle without the consent of the owner is also an element of the crime of auto theft. 'The difference between the crime of stealing a motor vehicle, and operating a motor vehicle without the consent of the owner is that conviction for stealing requires proof of an intent on the part of the thief to permanently deprive the owner of possession.' . . . (T)he crime of operating a motor vehicle without the consent of the owner is a lesser included offense of auto theft . . . ." Id., at 22.
9
Although this analysis led the court to agree with Brown that "for purposes of double jeopardy the two prosecutions involve the same statutory offense," id., at 23,4 it nonetheless held the second prosecution permissible:
10
"The two prosecutions are based on two separate acts of the appellant, one which occurred on November 29th and one which occurred on December 8th. Since appellant has not shown that both prosecutions are based on the same act or transaction, the second prosecution is not barred by the double jeopardy clause." Ibid.
11
The Ohio Supreme Court denied leave to appeal.
12
We granted certiorari to consider Brown's double jeopardy claim, 429 U.S. 893, 97 S.Ct. 253, 50 L.Ed.2d 176 (1976), and we now reverse.
II
13
The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." It has long been understood that separate statutory crimes need not be identical either in constituent elements or in actual proof in order to be the same within the meaning of the constitutional prohibition. 1 J. Bishop, New Criminal Law § 1051 (8th ed. 1892); Comment, Twice in Jeopardy, 75 Yale L.J. 262, 268-269 (1965). The principal question in this case is whether auto theft and joyriding, a greater and lesser included offense under Ohio law, constitute the "same offence" under the Double Jeopardy Clause.
14
Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v. Wilson, 420 U.S. 332, 339-340, 95 S.Ct. 1013, 1019-1020, 43 L.Ed.2d 232 (1975), the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.5
15
The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874). Where successive prosecutions are at stake, the guarantee serves "a constitutional policy of finality for the defendant's benefit." United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); cf. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), and from attempts to secure additional punishment after a prior conviction and sentence, see Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); cf. North Carolina v. Pearce, supra.
16
The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):
17
"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. . . . "
18
This test emphasizes the elements of the two crimes. "If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . . " Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616 (1975).
19
If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 U.S. 176, 187-188, 9 S.Ct. 672, 675-676, 33 L.Ed. 118 (1889); cf. Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. Unless "each statute requires proof of an additional fact which the other does not," Morey v. Commonwealth, 108 Mass. 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.6
20
We are mindful that the Ohio courts "have the final authority to interpret . . . that State's legislation." Garner v. Louisiana, 368 U.S. 157, 169, 82 S.Ct. 248, 254, 7 L.Ed.2d 207 (1961). Here the Ohio Court of Appeals has authoritatively defined the elements of the two Ohio crimes: Joyriding consists of taking or operating a vehicle without the owner's consent, and auto theft consists of joyriding with the intent permanently to deprive the owner of possession. App. 22. Joyriding is the lesser included offense. The prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft; the prosecutor who has established auto theft necessarily has established joyriding as well.
21
Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by the court, constitute "the same statutory offense" within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that "each (statute) requires proof of a fact which the other does not." 284 U.S., at 304, 52 S.Ct., at 182. As is invariably true of a greater and lesser included offense, the lesser offense joyriding requires no proof beyond that which is required for conviction of the greater auto theft. The greater offense is therefore by definition the "same" for purposes of double jeopardy as any lesser offense included in it.
22
This conclusion merely restates what has been this Court's understanding of the Double Jeopardy Clause at least since In re Nielsen was decided in 1889. In that case the Court endorsed the rule that
23
"where . . . a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense." 131 U.S., at 188, 9 S.Ct., at 676.
24
Although in this formulation the conviction of the greater precedes the conviction of the lesser, the opinion makes it clear that the sequence is immaterial. Thus, the Court treated the formulation as just one application of the rule that two offenses are the same unless each requires proof that the other does not. Id., at 188, 190, 9 S.Ct., at 676, citing Morey v. Commonwealth, supra, 108 Mass., at 434. And as another application of the same rule, the Court cited, 131 U.S., at 190, 9 S.Ct., at 677, with approval the decision of State v. Cooper, 13 N.J.L. 361 (1833), where the New Jersey Supreme Court held that a conviction for arson barred a subsequent felony-murder indictment based on the death of a man killed in the fire. Cf. Waller v. Florida, 397 U.S. 387, 390, 90 S.Ct. 1184, 1186, 25 L.Ed.2d 435 (1970). Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.7
III
25
After correctly holding that joyriding and auto theft are the same offense under the Double Jeopardy Clause, the Ohio Court of Appeals nevertheless concluded that Nathaniel Brown could be convicted of both crimes because the charges against him focused on different parts of his 9-day joyride. App. 23. We hold a different view. The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units. Cf. Braverman v. United States, 317 U.S. 49, 52, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942). The applicable Ohio statutes, as written and as construed in this case, make the theft and operation of a single car a single offense. Although the Wickliffe and East Cleveland authorities may have had different perspectives on Brown's offense, it was still only one offense under Ohio law.8 Accordingly, the specification of different dates in the two charges on which Brown was convicted cannot alter the fact that he was placed twice in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments.
26
Reversed.
27
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring.
28
I join the Court's opinion, but in any event would reverse on the ground, not addressed by the Court, that the State did not prosecute petitioner in a single proceeding. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, requires the prosecution in one proceeding, except in extremely limited circumstances not present here, of "all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction." Ashe v. Swenson, 397 U.S. 436, 453-454, 90 S.Ct. 1189, 1199, 25 L.Ed.2d 469 and n. 7 (1970) (Brennan, J., concurring). See Thompson v. Oklahoma, 429 U.S. 1053, 97 S.Ct. 768, 50 L.Ed.2d 770 (1977) (Brennan, J., dissenting from denial of certiorari), and cases collected therein. In my view the Court's suggestion, ante, at 169 n. 8, that the Ohio Legislature might be free to make joyriding a separate and distinct offense for each day a motor vehicle is operated without the owner's consent would not affect the applicability of the single-transaction test. Though under some circumstances a legislature may divide a continuing course of conduct into discrete offenses, I would nevertheless hold that all charges growing out of conduct constituting a "single criminal act, occurrence, episode, or transaction" must be tried in a single proceeding.
29
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
30
The Court reverses the judgment of the Ohio Court of Appeals because the Court does not wish this case to slip by without taking advantage of the opportunity to pronounce some acceptable but hitherto unenunciated (at this level) double jeopardy law. I dissent because, in my view, this case does not deserve that treatment.
31
I, of course, have no quarrel with the Court's general double jeopardy analysis. See Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168. I am unable to ignore as easily as the Court does, however, the specific finding of the Ohio Court of Appeals that the two prosecutions at issue here were based on petitioner's separate and distinct acts committed, respectively, on November 29 and on December 8, 1973.
32
Petitioner was convicted of operating a motor vehicle on December 8 without the owner's consent. He subsequently was convicted of taking and operating the same motor vehicle on November 29 without the owner's consent and with the intent permanently to deprive the owner of possession. It is possible, of course, that at some point the two acts would be so closely connected in time that the Double Jeopardy Clause would require treating them as one offense. This surely would be so with respect to the theft and any simultaneous unlawful operation. Furthermore, as a matter of statutory construction, the allowable unit of prosecution may be a course of conduct rather than the separate segments of such a course. See, e. g., United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952). I feel that neither of these approaches justifies the Court's result in the present case.
33
Nine days elapsed between the two incidents that are the basis of petitioner's convictions. During that time the automobile moved from East Cleveland to Wickliffe. It strains credulity to believe that petitioner was operating the vehicle every minute of those nine days. A time must have come when he stopped driving the car. When he operated it again nine days later in a different community, the Ohio courts could properly find, consistently with the Double Jeopardy Clause, that the acts were sufficiently distinct to justify a second prosecution. Only if the Clause requires the Ohio courts to hold that the allowable unit of prosecution is the course of conduct would the Court's result here be correct. On the facts of this case, no such requirement should be inferred, and the state courts should be free to construe Ohio's statute as they did.
34
This Court, I fear, gives undeserved emphasis, ante, at 163-164, to the Ohio Court of Appeals' passing observation that the Ohio misdemeanor of joyriding is an element of the Ohio felony of auto theft. That observation was merely a preliminary statement, indicating that the theft and any simultaneous unlawful operation were one and the same. But the Ohio Court of Appeals then went on flatly to hold that such simultaneity was not present here. Thus, it seems to me, the Ohio courts did precisely what this Court, ante, at 169 n. 8, professes to say they did not do.
35
In my view, we should not so willingly circumvent an authoritative Ohio holding as to Ohio law. I would affirm the judgment of the Court of Appeals.
1
Section 4549.04(D) provided at the time: "No person shall purposely take, operate, or keep any motor vehicle without the consent of its owner." A violation was punishable as a misdemeanor. Section 4549.04 was repealed effective January 1, 1974.
2
Section 4549.04(A) provided: "No person shall steal any motor vehicle." A violation was punishable as a felony.
3
The joyriding count of the indictment was nol prossed.
4
As the Ohio Court of Appeals recognized, the Wickliffe and Cuyahoga County prosecutions must be viewed as the acts of a single sovereign under the Double Jeopardy Clause. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).
5
We are not concerned here with the double jeopardy questions that may arise when a defendant is retried on the same charge after a mistrial, e. g., United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), or dismissal of the indictment or information, e. g., United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), or after a conviction is reversed on appeal, e. g., United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Nor are we concerned with the permissibility of separate prosecutions on closely related criminal charges when the accused opposes a consolidated trial, e. g., Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168.
6
The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of con-
secutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first. Thus in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), where an acquittal on a charge of robbing one of several participants in a poker game established that the accused was not present at the robbery, the Court held that principles of collateral estoppel embodied in the Double Jeopardy Clause barred prosecutions of the accused for robbing the other victims. And in In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), the Court held that a conviction of a Mormon on a charge of cohabiting with his two wives over a 21/2-year period barred a subsequent prosecution for adultery with one of them on the day following the end of that period.
In both cases, strict application of the Blockburger test would have permitted imposition of consecutive sentences had the charges been consolidated in a single proceeding. In Ashe, separate convictions of the robbery of each victim would have required proof in each case that a different individual had been robbed. See Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915). In Nielsen, conviction for adultery required proof that the defendant had sexual intercourse with one woman while married to another; conviction for cohabitation required proof that the defendant lived with more than one woman at the same time. Nonetheless, the Court in both cases held the separate offenses to be the "same" for purposes of protecting the accused from having to " 'run the gantlet' a second time." Ashe, supra, 397 U.S., at 446, 90 S.Ct., at 1195, quoting from Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957).
Because we conclude today that a lesser included and a greater offense are the same under Blockburger, we need not decide whether the repetition of proof required by the successive prosecutions against Brown would otherwise entitle him to the additional protection offered by Ashe and Nielsen.
7
An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. See Diaz v. United States, 223 U.S. 442, 448-449, 32 S.Ct. 250, 251, 56 L.Ed. 500 (1912); Ashe v. Swenson, supra, 397 U.S., at 453 n. 7, 90 S.Ct., at 1199 (Brennan, J., concurring).
8
We would have a different case if the Ohio Legislature had provided that joyriding is a separate offense for each day in which a motor vehicle is operated without the owner's consent. Cf. Blockburger v. United States, 284 U.S., at 302, 52 S.Ct., at 181. We also would have a different case if in sustaining Brown's second conviction the Ohio courts had construed the joyriding statute to have that effect. We then would have to decide whether the state courts' construction, applied retroactively in this case, was such "an unforeseeable judicial enlargement of a criminal statute" as to violate due process. See Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964); cf. In re Snow, 120 U.S. 274, 283-286, 7 S.Ct. 556, 560, 562, 30 L.Ed. 658 (1887); Crepps v. Durden, 2 Cowper 640 (K.B.1777).
| 01
|
432 U.S. 46
97 S.Ct. 2229
53 L.Ed.2d 100
E. I. du PONT de NEMOURS AND COMPANY et al., Petitioners,v.Richard J. COLLINS, Jr., et al. SECURITIES AND EXCHANGE COMMISSION, Petitioner, v. Richard J. COLLINS, Jr., et al.
Nos. 75-1870 and 75-1872.
Argued March 2, 1977.
Decided June 16, 1977.
Syllabus
In approving the merger of a closed-end investment company (Christiana), 98% of whose assets consisted of Du Pont & Co. common stock, into an affiliate company (Du Pont), the Securities and Exchange Commission (SEC) held to have reasonably exercised its discretion under § 17(b) of the Investment Company Act of 1940, as amended, in valuing Christiana essentially on the basis of the market value of Du Pont stock rather that on the lower basis of Christiana's outstanding stock. Since the record before the SEC clearly reveals substantial evidence to support the findings of the SEC and since that agency's conclusions of law were based on a construction of the statute consistent with the legislative intent, the Court of Appeals erred in rejecting the SEC's conclusion and substituting its own judgment for that of the SEC. SEC v. Chenery Corp., 332 U.S. 194, 209, 67 S.Ct. 1575, 1583, 91 L.Ed. 1995. Pp. 52-57.
8 Cir., 532 F.2d 584, reversed.
David Ferber, Washington, D. C., for petitioner in No. 75-1872.
Daniel M. Gribbon, Washington, D. C., for petitioners in No. 75-1870.
Richard J. Collins, Jr., and Lewis C. Murtaugh, Chicago, Ill., for respondents in both cases.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari1 in these cases to determine whether the Securities and Exchange Commission, in approving the merger of a closed-end investment company into an affiliate company, reasonably exercised its discretion under the Investment Company Act of 1940, 54 Stat. 789, as amended, 15 U.S.C. § 80a-1 et seq. The Commission valued the investment company essentially on the basis of the market value of the securities which constituted substantially all of its assets rather than on the lower basis of its own outstanding stock.
2
The statutory scheme here is relatively straightforward. Section 17 of the Investment Company Act of 1940, 15 U.S.C. 80a-17, forbids an "affiliated person," as defined in the Act,2 to purchase any securities or other property from a registered investment company unless the Commission finds, inter alia, that the "evidence establishes that . . . the terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned . . . ."3
3
(1) The merger in this litigation involves Christiana Securities Co., a closed-end, nondiversified management investment company, and E. I. du Pont de Nemours & Co., a large industrial operating company engaged principally in the manufacture of chemical products. Christiana was formed in 1915 in order to preserve family control of Du Pont & Co. At the time the present merger negotiations were announced in April 1972, 98% of Christiana's assets consisted of Du Pont common stock.4 This block of Du Pont stock in turn comprised approximately 28.3% of the outstanding common stock of Du Pont.5 For purposes of this litigation, Christiana has been presumed to have at least the potential to control Du Pont, although it submits that "this potential lies dormant and unexercised and that there is no actual control relationship." SEC Investment Company Act Release No. 8615 (1974), 5 S.E.C. Docket 745, 747 (1974).
4
Christiana itself has 11,710,103 shares of common stock outstanding6 and has about 8,000 shareholders. Unlike Du Pont stock, which is traded actively on the New York and other national stock exchanges, Christiana shares are traded in the over-the-counter market. Since virtually all of its assets are Du Pont common stock, the market price of Christiana shares reflects the market price of Du Pont stock. However, as is often the case with closed-end investment companies, Christiana's own stock has historically sold at discount from the market value of its Du Pont holdings.7 Apparently, this discount is primarily tax related since Christiana pays a federal intercorporate tax on dividends. Its stockholders are also subject to potential capital-gains tax on the unrealized appreciation of Christiana's Du Pont stock which has a very low tax base. Additionally, the relatively limited market for Christiana stock likely influences the discount.
5
In 1972, Christiana's management concluded that, because of the tax disadvantages and the discount at which its shares sold, Christiana should be liquidated and its stockholders become direct owners of Du Pont stock. Christiana's board of directors proposed liquidation of Christiana by means of a tax-free merger into Du Pont. Du Pont would purchase Christiana's assets by issuing to Christiana shareholders new certificates of Du Pont stock. In more concrete terms, Du Pont would acquire Christiana's $2.2 billion assets and assume its liabilities of approximately $300,000. In so doing, Du Pont would acquire from Christiana 13,417,120 shares of its own common stock. Du Pont would then issue 13,228,620 of its shares directly to Christiana holders. This would be 188,500 shares less than Du Pont would receive from Christiana. As a result of the merger, each share of Christiana common stock would be converted into 1.123 shares of Du Pont common stock. That ratio was ascertained by taking the market price of Christiana's Du Pont stock and its other assets, subtracting Christiana's relatively nominal liabilities, and making certain other minor adjustments. Direct ownership of Du Pont shares would increase the market value of the Christiana shareholders' holdings and Du Pont would have acquired Christiana's assets at a 2.5% discount from their net value. The Internal Revenue Service ruled the merger would be tax free.
6
(2) Du Pont and Christiana filed a joint application with the Commission for exemption under § 17 of the Investment Company Act. Administrative proceedings followed. The Commission's Division of Investment Management Regulation supported the application. A relatively small number of Du Pont shareholders, including the respondents in this case, opposed the transaction. Their basic argument was that, since Christiana was valued on the basis of its assets, Du Pont stock, rather than the much lower market price of its own outstanding stock, the proposed merger would be unfair to the shareholders of Du Pont since it provides relatively greater benefits to Christiana shareholders than to shareholders of Du Pont. The objecting stockholders argued that Du Pont & Co. should receive a substantial share of the benefit realized by Christiana shareholders from the elimination of the 23% discount from net asset value at which Christiana stock was selling. They also argued that the merger would depress the market price of Du Pont stock because it would place more than 13 million marketable Du Pont shares directly in the hands of Christiana shareholders.
7
After the hearing, the parties waived the initial administrative recommendations and the record was submitted directly to the Commission. The Commission unanimously granted the application. Basically, it viewed the proposed transaction as an exchange of equivalents Christiana's Du Pont stock to be acquired by Du Pont in exchange for Du Pont stock issued directly to Christiana shareholders. It held that, for purposes of § 17(b), the proper guide for evaluating Christiana was the market price of Christiana's holdings of Du Pont stock:
8
"Here justice requires no ventures into the unknown and unknowable. An investment company, whose assets consist entirely or almost entirely of securities the prices of which are determined in active and continuous markets, can normally be presumed to be worth its net asset value. . . . The simple, readily usable tool of net asset value does the job much better than an accurate gauge (sic) of market impact (were there one) could." 5 S.E.C. Docket, at 751.
9
The fact that Du Pont might have obtained more favorable terms because of its strategic bargaining position or by use of alternative methods of liquidating Christiana was considered not relevant by the Commission. In its view, the purpose of § 17 was to prevent persons in a strategic position from getting more than fair value. The Commission found no detriment in the transaction to Du Pont or to the value of its outstanding shares. Any depressing effects on the price of Du Pont would be brief in duration and the intrinsic value of an investment in Du Pont would not be altered by the merger. Moreover, in the Commission's view, any valuation involving a significant departure from net asset value would "run afoul of Section 17(b)(1) of the Act"; it would strip long-term investors in companies like Christiana of the intrinsic worth of the securities which underlie their holdings.
10
A panel of the United States Court of Appeals for the Eighth Circuit divided in setting aside the Commission's determination. Collins v. SEC, 532 F.2d 584 (1976).8 The majority held that the Securities and Exchange Commission had erred, as a matter of law, in determining that Christiana should be presumptively valued on the basis of the market value of its principal asset, common stock of Du Pont. "(I)n judging transactions between dominant and subservient parties, the test is 'whether or not under all the circumstances the transaction carries the earmarks of an arm's length bargain.' Pepper v. Litton, 308 U.S. 295, 306-307, 60 S.Ct. 238, 84 L.Ed. 281 (1939)." Id., at 592. Employing this standard, the Court of Appeals majority concluded that the record did not support the Commission's finding that the terms of the merger were "reasonable and fair" since the "economic benefits to Christiana shareholders from the merger are immediate and substantial," id., at 601, while "benefits to present Du Pont shareholders are minimal." Id., at 602. The court concluded that, from Du Pont's viewpoint, "the degree of (control) dispersion attained . . . does not justify the substantial premium paid for the Christiana stock." Id., at 603. The panel also held that the Commission had erred in failing to give weight to the "occasional detriment to Du Pont shareholders," id., at 605, caused by the increase of available Du Pont stock in the market.
B
11
In determining whether the Court of Appeals correctly set aside the order of the Commission, we begin by examining the nature of the regulatory process leading to the decision that court was required to review. In United States v. National Assn. of Securities Dealers, 422 U.S. 694, 95 S.Ct. 2427, 45 L.Ed.2d 486 (1975), we noted that the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq., "vests in the SEC broad regulatory authority over the business practices of the investment companies." 422 U.S., at 704-705, 95 S.Ct., at 2436. The Act was the product of congressional concern that existing legislation in the securities field did not afford adequate protection to the purchasers of investment company securities. Prior to the enactment of the legislation, Congress mandated an intensive study of the investment company industry.9 One of the problems specifically identified was the numerous transactions between investment companies and persons affiliated with them which resulted in a distinct advantage to the "insiders" over the public investors.10 Section 17 was the specific congressional response to this problem.11 Congress therefore charged the Commission, in scrutinizing a merger such as this, to take into account the peculiar characteristics of such a transaction in the investment company industry. Recognizing that an "arm's length bargain," cf. Pepper v. Litton, 308 U.S. 295, 307, 60 S.Ct. 238, 245, 84 L.Ed. 281 (1939), is rarely a realistic possibility in transactions between an affiliate and an investment company, Congress substituted, in effect, the informed judgment of the Commission to determine, inter alia whether the transaction was "reasonable and fair and (did) not involve overreaching on the part of any person concerned."12
12
Given the wide variety of possible transactions between an investment company and its affiliates, Congress, quite understandably, made no attempt to define this standard with any greater precision. Instead, it followed the practice frequently employed in their administrative schemes. The language of the statute was cast in broad terms and designed to encompass all situations falling within the scope of the statute; an agency with great experience in the industry was given the task of applying those criteria to particular business situations in a manner consistent with the legislative intent.13
C
13
In this case, a judgment as to whether the terms of the merger were "reasonable and fair" turned upon the value assigned to Christiana. In making such an evaluation, the Commission concluded that "(t)he single, readily usable tool of net asset value does the job much better than an accurate gauge of market impact. . . ." 5 S.E.C. Docket, at 751. Investment companies, it reasoned, are essentially a portfolio of securities whose individual prices are determined by the forces of the securities marketplace. In determining value in merger situations, "asset value" is thus much more applicable to investment companies than to other corporate entities. The value of the securities surrendered is, basically, the real value received by the transferee.
14
(1, 2) In reviewing a decision of the Commission, a court must consider both the facts found and the application of the relevant statute by the agency. Congress has mandated that, in review of § 17 proceedings, "(t)he findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive." 15 U.S.C. § 80a-42. A reviewing court is also to be guided by the "venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong . . . ." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969). "(C)ontemporaneous construction is entitled to great weight . . . even though it was applied in cases settled by consent rather than in litigation." FTC v. Mandel Bros., 359 U.S. 385, 391, 79 S.Ct. 818, 823, 3 L.Ed.2d 893 (1959). Here, however, the Court of Appeals held, as a matter of law, that the Commission erred in the method applied in passing on the merger, thus all but ignoring the congressional limitations on judicial review of agency action.
15
The Commission has long recognized that the key factor in the valuation of the assets of a closed-end investment company should be the market price of the underlying securities. This method of setting the value of investment companies is, as Congress contemplated, the product of the agency's long and intimate familiarity with the investment company industry. For instance, in issuing an advisory report to the United States District Court pursuant to § 173 of Chapter X of the Bankruptcy Act, the Commission advised that "it is natural that net asset value based upon market prices should be the fundamental valuation criterion used by and large in the investment company field." Central States Electric Co., 30 S.E.C. 680, 700 (1949), approved sub nom. Central States Electric Corp. v. Austrian, 183 F.2d 879, 884 (CA4 1950), cert. denied, 340 U.S. 917, 71 S.Ct. 350, 95 L.Ed. 662 (1951). Similarly, in mergers like the one presented in this litigation, the Commission has used "net asset value" as a touchstone in its analysis. See, e. g., Delaware Realty & Investment Co., 40 S.E.C. 469, 473 (1961); Harbor Plywood Corp., 40 S.E.C. 1002 (1962); Eastern States Corp., SEC Investment Company Act Releases Nos. 5693 and 5711 (1969).14
16
Moreover, despite the characterization of the Court of Appeals to the contrary, the Commission did not employ a mechanical application of a rule or "presumption." It considered carefully the contentions of the respondents that a departure from the use of net asset value was warranted in this case. Upon analysis, it concluded that the central and controlling aspect of the merger remained the fact that it consisted of an exchange of Du Pont common stock for Du Pont common stock; it was not Christiana stock but Du Pont stock which Du Pont was receiving in the merger. As to the claim that Du Pont stock would be adversely affected over an extended period of time by volume selling, the Commission concluded there was no indication of a long-term adverse market impact. It noted that Christiana stock was held principally by long-term investors. There was no evidence that Christiana stockholders, who for years had been indirect investors in Du Pont, would now change the essential nature of their investment.
17
(3) The Commission's reliance on "net asset value" in this particular case and its consequent determination that the proposed merger met the statutory standards thus rested "squarely in that area where administrative judgments are entitled to the greatest amount of weight by appellate courts. It is the product of administrative experience, appreciation of the complexities of the problem, realization of the statutory policies, and responsible treatment of the uncontested facts." SEC v. Chenery Corp., 332 U.S. 194, 209, 67 S.Ct. 1575, 1583, 91 L.Ed. 1995 (1947). In rejecting the conclusion of the Commission, the Court of Appeals substituted its own judgment for that of the agency charged by Congress with that responsibility.
18
We note that after receiving briefs and hearing oral argument, the Court of Appeals over the objection of the Commission, Christiana, and Du Pont undertook the unique appellate procedure of employing a university professor to assist the court in understanding the record and to prepare reports and memoranda for the court. Thus, the reports relied upon by that court included a variety of data and economic observations which had not been examined and tested by the traditional methods of the adversary process. We are not cited to any statute, rule, or decision authorizing the procedure employed by the Court of Appeals. Cf. Fed.Rule App.Proc. 16.
19
(4) In our view, the Court of Appeals clearly departed from its statutory appellate function and applied an erroneous standard in its review of the decision of the Commission. The record made by the parties before the Commission was in accord with traditional procedures and that record clearly reveals substantial evidence to support the findings of the Commission. Moreover, the agency conclusions of law were based on a construction of the statute consistent with the legislative intent. Accordingly, the judgment of the Court of Appeals is
20
Reversed.
21
Mr. Justice REHNQUIST took no part in the consideration or decision of these cases.
22
Mr. Justice BRENNAN, dissenting.
23
Section 17 of the Investment Company Act of 1940, 15 U.S.C. § 80a-17, prohibits transactions between registered investment companies and "affiliated persons," except as the Securities and Exchange Commission approves such transactions on application, if, inter alia, "the terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned." § 80a-17(b). The SEC approved the application of Christiana Securities Co. (Christiana) to merge into E. I. du Pont de Nemours & Co. (Du Pont), finding that the proposed transaction met the statutory standard.
24
Christiana was created in 1915 to concentrate the Du Pont family's holdings of Du Pont stock. Its assets consist almost entirely of Du Pont common stock, of which it holds 28.3% of the total outstanding. It is thus an investment company within the meaning of the Act, and an affiliate of Du Pont subject to the prohibitions of § 17. Although ownership of Christiana stock is essentially indirect ownership of Du Pont stock, Christiana stock is traded over-the-counter at a considerable discount from the market price of the corresponding shares of Du Pont.
25
For reasons unnecessary to elaborate here, Christiana is no longer regarded by its owners as a desirable control mechanism. Moreover, the tax laws make it expensive to maintain, since dividends from Du Pont are taxed when paid to Christiana, and again when passed on to the shareholders as dividends from Christiana. Elimination of Christiana is therefore desirable to its shareholders, and an agreement was reached to effectuate this goal by merging Christiana into Du Pont.1 The terms of this agreement are set forth in the Court's opinion, ante, at 49-50, but in effect, Du Pont acquired its own shares from Christiana at about a 2.5% discount from their market price, while Christiana's shareholders eliminated their costly holding company, without incurring any tax liability.2
26
It is conceded that while the primary concern of Congress in enacting the Act was the protection of investment company shareholders, § 17(b) does not permit the SEC to authorize a transaction that is unfair to the affiliated person, any more than one that is unfair to the investment company. Fifth Avenue Coach Lines, Inc., 43 S.E.C. 635 (1967). See the opinion of the Court, ante, at 53 n. 11.3 The SEC found here that the transaction was fair to Du Pont's shareholders, essentially because they paid slightly less than the net asset value of Christiana. In this sense, it is true that Du Pont paid for Christiana no more than it is intrinsically "worth," and so the price could be considered "fair." However, in a market economy, the value of any commodity is no more nor less than the price arm's-length bargainers agree on. Christiana and Du Pont were not arm's-length bargainers,4 and it is obvious that if they had been, Du Pont would have insisted on, and would have had the bargaining power to obtain, a more favorable price. Instead, the directors of Du Pont accommodated the desires of Christiana, owner of a control block of Du Pont stock, without requiring the quid pro quo they would undoubtedly have demanded from any other seller.
27
I do not mean to suggest that the SEC should not, as a general rule, look to the net asset value of an investment company in evaluating the fairness of transactions such as this. At least where the result of the transaction is the elimination of the investment company, the party that acquires it gets the full value of its holdings, and not just a block of stock in the investment company; the asset value thus seems in the usual case a better measure of the investment company's value than the market price of its stock. On the other hand, in a situation such as this, the depressed market price of Christiana stock may well reflect its undesirability to its present holders.5 Even if the stock is for some reason still desirable to the purchaser, this undesirability can be translated into a benefit to him because it gives him bargaining leverage to obtain a better price.6
28
However accurate asset valuation may be in most contexts, each determination of what is fair and reasonable and free of overreaching must by the nature of the inquiry turn on the facts of the particular transaction involved.7 I would hold that the SEC applied an erroneous standard in this case by presuming that in the absence of actual detriment to the purchaser, a transaction that recognizes the net asset value of an investment company is fair and reasonable. In my view the correct standard required the SEC to compare the terms of the transaction with those that would have been reached by arm's-length bargainers.8 Here, Du Pont's directors, who were in the conflict-of-interest situation with which the Act is concerned because of Christiana's position as a controlling shareholder of Du Pont, entered a transaction that handsomely benefited Christiana, without extracting the price for Du Pont that an arm's-length negotiator would have demanded and received.9 I therefore disagree with the SEC's holding that this behavior was fair and reasonable to Du Pont, or free from overreaching on the part of Du Pont's controlling shareholder, Christiana. Accordingly, I would affirm the judgment of the Court of Appeals.
1
429 U.S. 815, 97 S.Ct. 56, 50 L.Ed.2d 75 (1976).
2
Title 15 U.S.C. § 80a-2(a)(3) defines an "affiliated person" as follows:
"(3) 'Affiliated person' of another person means (A) any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting securities of such other person; (B) any person 5 per centum or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other person; (C) any person directly or indirectly controlling, controlled by, or under common control with, such other person; (D) any officer, director, partner, copartner, or employee of such other person; (E) if such other person is an investment company, any investment adviser thereof or any member of an advisory board thereof; and (F) if such other person is an unincorporated investment company not having a board of directors, the depositor thereof."
3
Section 17(b) also requires that the proposed transaction be (1) consistent with the policy of each registered investment company concerned, and (2) consistent with "the general purposes of this title." 54 Stat. 815, 15 U.S.C. §§ 80a-17(b)(2), (3). These criteria are not contested here.
4
Christiana owns 13,417,120 shares of Du Pont. It also holds a relatively small amount of Du Pont preferred stock. Its other assets consist of two daily newspapers in Wilmington, Del., and 3.5% of the stock of the Wilmington Trust Co., which, in turn, holds more than one-half of Christiana's common stock as trustee. SEC Investment Company Act Release No. 8615 (1974).
5
According to the applicants' Notice of Filing of Application, SEC Investment Company Act Release No. 7402 (1972), Du Pont has 47,566,694 shares of common stock outstanding held by approximately 224,964 shareholders.
6
Ninety-five and one-half percent of these shares are held by 338 people. SEC Investment Company Act Release No. 8615, supra.
7
In the two years preceding the date of the announcement of the merger negotiations, this discount was generally in the range of 20%-25%. Ibid.
8
A petition for rehearing en banc was denied by an equally divided court.
9
Section 30 of the Public Utility Holding Company Act, 49 Stat. 837, 15 U.S.C. § 79z-4, mandated that the SEC undertake such a study. See United States v. National Assn. of Securities Dealers, 422 U.S. 694, 704, 95 S.Ct. 2427, 2435, 45 L.Ed.2d 486 (1975).
10
See generally Report on Investment Trust and Investment Companies, H.R.Doc.No.279, 76th Cong., 1st Sess., 1017-1561 (1940).
11
While the House and Senate Reports indicate that the Congress' chief concern was protection of the public investors of the investment company, S.Rep.No.1775, 76th Cong., 3d Sess., 11-12 (1940); H.R.Rep.No.2639, 76th Cong., 3d Sess., 9 (1940), the statute has been construed to afford protection to the stockholders of the affiliate as well. See Fifth Avenue Coach Lines, Inc., 43 S.E.C. 635, 639 (1967).
12
15 U.S.C. § 80a-17(b)(1).
13
This situation is quite different from that which confronted the Court earlier this Term in Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977). There, the Court held that "the narrow legal issue" of implying a private right of action under the securities laws was "one peculiarly reserved for judicial resolution" and that the experience of the Commission on such a question was of "limited value." Id., at 41 n. 27, 97 S.Ct., at 949 n. 27. By contrast, this case involves an assessment as to whether a given business arrangement is compatible with the regulatory scheme which the agency is charged by Congress to administer.
14
This method of valuation of closed-end investment companies was similarly employed in ELT, Inc., SEC Investment Company Act Releases Nos. 8675 and 8714 (1975); Chemical Fund, Inc., SEC Investment Company Act Releases Nos. 8773 and 8795 (1975); Citizens & Southern Capital Corp., SEC Investment Company Act Releases Nos. 7755 and 7802 (1973); Detroit & Cleveland Nav. Co., SEC Investment Company Act Releases Nos. 3082 and 3099 (1960); Cheapside Dollar Fund, Ltd., SEC Investment Company Act Releases Nos. 9038 and 9085 (1975). The Commission has, of course, required that such valuations be adjusted to reflect such factors as expenses of the merger and tax considerations. Talley Industries, Inc., SEC Investment Company Act Release No. 5953 (1970); and Electric Bond & Share Co., SEC Investment Company Act Release No. 5215 (1967), cited by the Court of Appeals, did not rely on net asset value since the companies held substantial assets other than securities. While Christiana also had some assets other than Du Pont stock, they amounted to only 2% of its assets.
1
Liquidation of Christiana would also have accomplished the desired result, without involving Du Pont or the prohibitions of § 17, but was apparently ruled out by Christiana because of disadvantageous tax consequences for its shareholders.
2
In contrast to the disadvantageous tax consequences of alternative means of disposing of Christiana, see n. 1, supra, the Internal Revenue Service had ruled that the proposed merger with Du Pont would be tax free. Ante, at 50.
3
In order to be approved, the transaction must "not involve overreaching on the part of any person concerned." 15 U.S.C. § 80a-17(b) (emphasis supplied).
4
Christiana owned a potentially controlling share of Du Pont. As the Court concedes, ante, at 53, an arm's-length bargain "is rarely a realistic possibility" in such a situation. While "Du Pont did take some steps to simulate arm's-length bargaining," 532 F.2d 584, 598 (1976), the Court of Appeals made short shrift of their significance, id., at 598-601, and the Court places no reliance on them.
5
In addition to the tax on intercorporate dividends, as the Court recognizes, ante, at 49, other disadvantages to the continued maintenance of Christiana might have been reflected in the low market price of its stock, such as the potential for high capital-gains taxation and the relative illiquidity of Christiana stock, for which there is a more limited market than for Du Pont.
6
The SEC's argument that § 17 was intended "to prevent persons in a strategic position from getting more than fair value," ante, at 51, is a mere play on words. As the legislative history, examined at length by the Court of Appeals, 532 F.2d, at 591-592, makes plain, § 17 was intended to protect minority interests from exploitation by insiders of their "strategic position," and to restore a situation in which "the directors of the several corporations involved in negotiations for a merger . . . are acting at arm's length in an endeavor to secure the best possible bargain for their respective stockholders." SEC, Report on Investment Trusts and Investment Companies, H.R.Doc. No. 279, 76th Cong., 1st Sess., 1414 (1940). Far from being intended to negate factors that would give one party a "strategic bargaining position" in arm's-length bargaining in the free market, the Act was specifically intended to give those factors free play, uncorrupted by insiders' desires to benefit themselves rather than the stockholders as a whole.
7
Since this is so, one might well wonder what "special and important reasons" exist for this Court to decide "whether the Securities and Exchange Commission . . . reasonably exercised its discretion" in a particular case. Ante, at 47. See this Court's Rule 19.
8
Although the SEC did recognize the possibility that there might be cases in which an exception to the "net asset value" rule would be appropriate, its inquiry in this litigation turned entirely on the possible detriment of this transaction to Du Pont's shareholders. No attempt was made to determine what the results of arm's-length bargaining might have been. The Court of Appeals, correctly in my view, held that such an inquiry should have been made. Accordingly, the Court of Appeals held that the agency had applied an erroneous legal standard, and no question of invasion of the area of SEC expertise is presented.
9
It may appear harsh to insist that, in the absence of actual detriment to its other shareholders, Du Pont press its advantage, rather than accommodate Christiana. But in accommodating Christiana, Du Pont's directors were not merely being "nice guys" in a disinterested fashion, at no cost to anyone. They were giving special consideration to an investment company that holds a controlling share of Du Pont. This is precisely the evil at which § 17 was directed.
| 78
|
432 U.S. 249
97 S.Ct. 2348
53 L.Ed.2d 320
NORTHEAST MARINE TERMINAL COMPANY, INC., et al., Petitioners,v.Ralph CAPUTO et al. INTERNATIONAL TERMINAL OPERATING COMPANY, INC., Petitioner, v. Carmelo BLUNDO et al.
Nos. 76-444 and 76-454.
Argued April 18, 1977.
Decided June 17, 1977.
Syllabus
In 1972 Congress amended the Longshoremen's and Harbor Workers' Compensation Act (Act) to extend coverage to additional workers in an attempt to avoid anomalies inherent in a system that drew lines at the water's edge by allowing compensation under the Act only to workers injured on the seaward side of a pier. The relevant sections, as so amended, broadened the definition of "navigable waters of the United States" as the required situs of a compensable injury to include "any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel," 33 U.S.C. § 903(a) (1970 ed., Supp. V), and also modified the definition of a covered "employee" to mean "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker," 33 U.S.C. § 902(3)(1970 ed., Supp. V). Respondent Blundo, whose job as a "checker" at a pier for petitioner International Terminal Operating Co. was to check and mark cargo being unloaded from a vessel or from a container (a large metal box resembling a truck trailer without wheels) which had been taken off a vessel, was injured when, while marking cargo "stripped" (unloaded) from a container, he slipped on some ice on the pier. Respondent Caputo, who, though a member of a regular stevedoring "gang" for another company, had been temporarily hired by petitioner Northeast Marine Terminal Co. as a terminal laborer at a pier to load and unload containers, barges, and trucks, was injured while rolling a dolly loaded with ship's cargo into a consignee's truck. Compensation awards to both respondents under the Act, as amended, were upheld by the Court of Appeals. Held:
1. Both respondents satisfied the "status" test of eligibility for compensation, since they were both "engaged in maritime employment" and were therefore "employees" within the meaning of § 902(3) at the time of their injuries. Pp. 265-279.
(a) Congress' intent to adapt the Act to modern cargo-handling techniques, such as containerization, which have moved much of the longshoreman's work off the vessel and onto land, clearly indicates that such tasks as stripping a container are included in the category of "longshoring operations" under § 902(3), and hence it is apparent that respondent Blundo, whose task was an integral part of the unloading process as altered by the advent of containers, was a statutory "employee" when he slipped on the ice. Pp. 269-271.
(b) Both the text of the 1972 amendments to the Act, which focuses primarily on occupations (longshoreman, harbor worker, etc.), and their legislative history, which shows that Congress wanted a system that did not depend on the fortuitous circumstance of whether the injury occurred on land or over water, demonstrate that Congress intended to provide continuous coverage to amphibious workers such as longshoremen, who, without the amendments, would be covered for only part of their activity, and that therefore the amendments were meant to cover such a person as respondent Caputo, who as a member of a regular stevedoring gang worked either on the pier or on the ship, and who on the day of his injury in his job as a terminal laborer could have been assigned to a number of tasks, including stripping containers, unloading barges, and loading trucks. Pp. 271-274.
(c) Respondents' coverage as "employees" under the Act cannot be defeated by the so-called "point of rest" theory, whereby longshoremen's "maritime employment" would be considered, in the case of unloading, to be taking cargo out of a vessel's hold, moving it away from the ship's side, and carrying it to its point of rest on a pier or in a terminal shed, since that theory appears nowhere in the Act, was never mentioned by Congress during the legislative process, does not comport with Congress' intent, and restricts coverage of a remedial Act designed to extend coverage. Pp. 274-279.
2. The injuries of both respondents occurred on a "situs" covered by the Act. Pp. 279-281.
(a) The truck that respondent Caputo was helping to load was parked inside the terminal area adjoining "navigable waters of the United States." P. 279.
(b) Although respondent Blundo's injuries occurred on a pier used only for stripping and stuffing containers and for storage, rather than for loading and unloading ships, nevertheless he too satisfied the "situs" test, since the pier was located in a terminal adjoining the water, so that even if it is assumed that the phrase "customarily used" in § 903(a) modifies all the preceding terms, rather than only the immediately preceding term "other adjoining area," he satisfied the test by working in an "adjoining . . . terminal . . . customarily used . . . for loading (and) unloading." Pp. 279-281.
Cir., 544 F.2d 35, affirmed.
William M. Kimball, New York City, for petitioners Northeast Marine Terminal Co. et al.
E. Barrett Prettyman, Washington, D. C., for petitioner International Terminal Operating Co., Inc.
Angelo C. Gucciardo, New York City, for respondents Caputo and Blundo.
Frank H. Easterbrook, Washington, D. C., for respondent, Director, Office of Workers' Compensation Programs, pro hac vice, by special leave of Court.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
In 1972 Congress amended the Longshoremen's and Harbor Workers' Compensation Act (LHWCA or Act), 33 U.S.C. § 901 et seq., in substantial part to "extend (the Act's) coverage to protect additional workers." S.Rep.No.92-1125, p. 1 (1972) (hereinafter S.Rep.).1 In these consolidated cases we must determine whether respondents Caputo and Blundo, injured while working on the New York City waterfront, are entitled to compensation. To answer that question we must determine the reach of the 1972 Amendments.
2
The sections of the Act relevant to these cases are the ones providing "coverage" and defining "employee." They provide, with italics to indicate the material added in 1972:
3
"Compensation shall be payable . . . in respect of disability or death of an employee but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel ). . . ." 33 U.S.C. § 903(a) (1970 ed., Supp. V).
4
"The term 'employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net." 33 U.S.C. § 902(3) (1970 ed., Supp. V).
5
Specifically at issue here is whether respondents Caputo and Blundo were "employees" within the meaning of the Act and whether the injuries they sustained occurred on the "navigable waters of the United States."
6
* At the time of his injury respondent Carmelo Blundo had been employed for five years as a "checker" by petitioner International Terminal Operating Co. (ITO) at its facility in Brooklyn, N.Y., known as the 21st Street Pier. As a checker he was responsible for checking and recording cargo as it was loaded onto or unloaded from vessels, barges, or containers.2 Blundo was assigned his tasks at the beginning of each day and until he arrived at the terminal he did not know whether he would be working on a ship or on shore. He was reassigned during the day if he completed the task to which he was assigned initially. App. 63-39, 112.
7
On January 8, 1974, ITO assigned Blundo to check cargo being "stripped" or removed from a container on the 19th Street side of the pier. The container Blundo was checking had been taken off a vessel at another pier facility outside of Brooklyn and brought overland unopened by an independent trucking company to the 21st Street Pier. It was Blundo's job to break the seal that had been placed on the container in a foreign port and show it to United States Customs Agents. After the seal was broken, Blundo was to check the contents of the container against a manifest sheet describing the cargo, the consignees, and the ship on, and port from which, the cargo had been transported. He was to mark each item of cargo with an identifying number. After the checking, the cargo was to be placed on pallets, sorted according to consignees, and put in a bonded warehouse pending customs inspection. Blundo was injured as he was marking the cargo stripped from the container, when he slipped on some ice on the pier. Id., at 69-74, 86-90.
8
Blundo sought compensation under the LHWCA. The Administrative Law Judge concluded that Blundo satisfied the coverage requirements of the Act and the Benefits Review Board (BRB) affirmed.3
9
Respondent Ralph Caputo was a member of a regular longshoring "gang" that worked for Pittston Stevedoring Co.4 When his gang was not needed, Caputo went to the waterfront hiring hall, where he was hired by the day by other stevedoring companies or terminal operators with work available. He had been hired on some occasions by Northeast Stevedoring Co. to work as a member of a stevedore gang on ships at the 39th Street Pier in Brooklyn; on other occasions he had been hired by petitioner Northeast Marine Terminal Co., Inc. (Northeast), for work in its terminal operations at the same location. App. 8-10, 14-16.
10
On April 16, 1973, Caputo was hired by Northeast to work as a "terminal labor(er)." App. to Pet. for Cert. in No. 76-444, p. 48a; App. 8, 14. A terminal laborer may be assigned to load and unload containers, lighters,5 barges, and trucks.6 Id., at 8; Brief for Petitioners in No. 76-444, p. 4. When he arrived at the terminal, Caputo was assigned, along with a checker and forklift driver, to help consignees' truckmen load their trucks with cargo that had been discharged from ships at Northeast's terminal.7 Caputo was injured while rolling a dolly loaded with cheese into a consignee's truck. App. 27-40.
11
The Administrative Law Judge found that Caputo satisfied the requirements of the Act and awarded him compensation. The BRB affirmed.8
12
The employers in both cases filed petitions to review the decisions and the Court of Appeals for the Second Circuit consolidated the cases. After thorough consideration of the language, history, and purposes of the 1972 Amendments, the court held, one judge dissenting, that the injuries of both respondents were compensable under the LHWCA.9 In view of the conflict over the coverage afforded by the 1972 Amendments,10 we granted certiorari to consider both cases.11 429 U.S. 998, 97 S.Ct. 522, 50 L.Ed.2d 607 (1976). We affirm.
II
13
Congress enacted the LHWCA in 1927, 44 Stat. 1424, after this Court had thwarted the efforts of the States and of Congress to provide compensation for maritime workers injured on navigable waters through state compensation programs. In 1917, the Court, in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, held that the States were without power to extend a workmen's compensation remedy to longshoremen injured on the gangplank between a ship and a pier. The decision left longshoremen injured on the seaward side of a pier without a compensation remedy while longshoremen injured on the pier were protected by state compensation Acts. State Industrial Comm'n v. Nordenholt Corp., 259 U.S 263, 42 S.Ct. 473, 66 L.Ed. 933 (1922). Dissatisfied with the gap in coverage thus created, and recognizing that the amphibious nature of longshoremen's work made it desirable to have "one law to cover their whole employment, whether directly part of the process of loading or unloading a ship or not," Congress sought to authorize States to apply their compensation statutes to injuries seaward of the Jensen line.12 Its attempts to allow such uniform state systems, however, were struck down as unlawful delegations of congressional power. Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920). Finally, convinced that the only way to provide workmen's compensation for longshoremen and harborworkers injured on navigable waters was to enact a federal system, Congress, in 1927, passed the LHWCA.
14
The Act was, in a sense, a typical workmen's compensation system, compensating an employee for injuries "arising out of and in the course of employment."13 But it was designed simply to be a gapfiller to fill the void created by the inability of the States to remedy injuries on navigable waters. Thus, it provided coverage only for injuries occurring "upon the navigable waters of the United States" and permitted compensation awards only "if recovery . . . through workmen's compensation proceedings (could) not validly be provided by state law."14
15
Congress' initial apprehension of the difficulties inherent in the existence of two compensation systems for injuries sustained by amphibious workers proved to be well founded. The courts spent the next 45 years trying to ascertain the respective spheres of coverage of the state and federal systems. As two commentators described it, "the relationship between (LHWCA) and the otherwise applicable State Compensation Act (was) shrouded in impenetrable confusion." G. Gilmore & C. Black, Law of Admiralty 409 (2d ed. 1975) (Gilmore). It is unnecessary to examine in detail the Court's efforts to dispel the confusion.15 Suffice it to say that while the Court permitted recovery under state remedies in particular situations seaward of the Jensen line, see, e. g., Davis v. Department of Labor and Industries of Washington, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), the Court made it clear that federal coverage stopped at the water's edge. Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969).
16
In Nacirema Operating Co., supra, the Court held that the Act did not cover longshoremen killed or injured on a pier while attaching cargo to ships' cranes for loading onto the ships, even though coverage might have existed had the men been hurled into the water by the accident, Marine Stevedoring Corp. v. Oosting, 238 F.Supp. 78 (ED Va. 1965), aff'd, 398 F.2d 900 (CA4 1968) (en banc),16 or been injured on the deck of the ship while performing part of the same operation, Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). The dissent protested the incongruity and unfairness of having coverage determined by "where the body falls" and argued that the Act was "status oriented, reaching all injuries sustained by longshoremen in the course of their employment." 396 U.S., at 224, 90 S.Ct., at 354 (Douglas, J., dissenting). The majority, however, did not agree.
17
"There is much to be said for uniform treatment of longshoremen injured while loading or unloading a ship. But even construing the (Extension of Admiralty Jurisdiction Act of 1948, 46 U.S.C. § 740,) to amend the Longshoremen's Act would not effect this result, since longshoremen injured on a pier by pier-based equipment would still remain outside the Act. And construing the Longshoremen's Act to coincide with the limits of admiralty jurisdiction whatever they may be and however they may change simply replaces one line with another whose uncertain contours can only perpetuate on the landward wide of the Jensen line, the same confusion that previously existed on the seaward side. While we have no doubt that Congress had the power to choose either of these paths in defining the coverage of its compensation remedy, the plain fact is that it chose instead the line in Jensen separating water from land at the edge of the pier. The invitation to move that line landward must be addressed to Congress, not to this Court." Id., at 223-224, 90 S.Ct., at 354."17
18
In 1972, Congress moved the line.
19
The 1972 Amendments were the first significant effort to reform the 1927 Act and the judicial gloss that had been attached to it. The main concern of the 1972 Amendments was not with the scope of coverage but with accommodating the desires of three interested groups: (1) shipowners who were discontented with the decisions allowing many maritime workers to use the doctrine of "seaworthiness" to recover full damages from shipowners regardless of fault; (2) employers of the longshoremen who, under another judicially created doctrine, could be required to indemnify shipowners and thereby lose the benefit of the intended exclusivity of the compensation remedy; and (3) workers who wanted to improve the benefit schedule deemed inadequate by all parties.18 Congress sought to meet these desires by "specifically eliminating suits against vessels brought for injuries to longshoremen under the doctrine of seaworthiness and outlawing indemnification actions and 'hold harmless' or indemnity agreements(; continuing) to allow suits against vessels or other third parties for negligence(; and raising) benefits to a level commensurate with present day salaries and with the needs of injured workers whose sole support will be payments under the Act." S.Rep. 5.19
20
In increasing the benefits, however, Congress recognized that the disparity between the federal compensation rates and the significantly lower state rates would exacerbate the harshness of the already unpopular Jensen line. It also realized that modern technology had moved much of the longshoreman's work onto the land so that if coverage were not extended, there would be many workers who would be relegated to what Congress deemed clearly inadequate state compensation systems. As both the Senate and House Reports stated:
21
"(C)overage of the present Act stops at the water's edge; injuries occurring on land are covered by State Workmen's Compensation laws. The result is a disparity in benefits payable for death or disability for the same type of injury depending on which side of the water's edge and in which State the accident occurs.
22
"To make matters worse, most State Workmen's Compensation laws provide benefits which are inadequate. . . .
23
"It is apparent that if the Federal benefit structure embodied in (the) Committee bill is enacted, there would be a substantial disparity in benefits payable to a permanently disabled longshoreman, depending on which side of the water's edge the accident occurred, if State laws are permitted to continue to apply to injuries occurring on land. It is also to be noted that with the advent of modern cargo-handling techniques, such as containerization and the use of LASH-type vessels, more of the longshoreman's work is performed on land than heretofore."20
24
To remedy these problems, Congress extended the coverage shoreward. It broadened the definition of "navigable waters of the United States" to include "any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel."21 At the same time, Congress amended the definition of the persons covered by the Act. Previously, so long as a work-related injury occurred on navigable waters and the injured worker was not a member of a narrowly defined class,22 the worker would be eligible for federal compensation provided that his or her employer had at least one employee engaged in maritime employment. It was not necessary that the injured employee be so employed. Pennsylvania Railroad Co. v. O'Rourke, 344 U.S. 334, 340-342, 73 S.Ct. 302, 305-306, 97 L.Ed. 367 (1953). But with the definition of "navigable waters" expanded by the 1972 Amendments to include such a large geographical area, it became necessary to describe affirmatively the class of workers Congress desired to compensate. It therefore added the requirement that the injured worker be "engaged in maritime employment," which it defined to include "any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but . . . not . . . a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net." 33 U.S.C. § 902(3) (1970 ed., Supp. V).23
25
The 1972 Amendments thus changed what had been essentially only a "situs" test of eligibility for compensation to one looking to both the "situs" of the injury and the "status" of the injured. We must now determine whether respondents Caputo and Blundo satisfied these requirements.
III
26
We turn first to the question whether Caputo and Blundo satisfied the "status" test that is, whether they were "engaged in maritime employment" and therefore "employees" at the time of their injuries.24 The question is made difficult by the failure of Congress to define the relevant terms "maritime employment," "longshoremen," "longshoring operations"25 in either the text of the Act or its legislative history.26
27
The closest Congress came to defining the key terms is the "typical example" of shoreward coverage provided in the Committee Reports.27 The example clearly indicates an intent to cover those workers involved in the essential elements of unloading a vessel taking cargo out of the hold, moving it away from the ship's side, and carrying it immediately to a storage or holding area. The example also makes it clear that persons who are on the situs but are not engaged in the overall process of loading and unloading vessels are not covered. Thus, employees such as truckdrivers, whose responsibility on the waterfront is essentially to pick up or deliver cargo unloaded from or destined for maritime transportation are not covered. Also excluded are employees who perform purely clerical tasks and are not engaged in the handling of cargo. But while the example is useful for identifying the outer bounds of who is clearly excluded and who is clearly included, it does not speak to all situations.28 In particular, it is silent on the question of coverage for those people, such as Caputo and Blundo, who are injured while on the situs, see Part IV, infra, and engaged in the handling of cargo as it moves between sea and land transportation after its immediate unloading.29
28
Nevertheless, we are not without guidance in resolving that question. The language of the 1972 Amendments is broad and suggests that we should take an expansive view of the extended coverage. Indeed, such a construction is appropriate for this remedial legislation. The Act "must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results." Voris v. Eikel, 346 U.S. 328, 333, 74 S.Ct. 88, 92, 98 L.Ed. 5 (1953). Consideration of the purposes behind the broadened coverage reveals a clear intent to reach persons such as Blundo and Caputo.30 One of the primary motivations for Congress' decision to extend the coverage shoreward was the recognition that "the advent of modern cargo-handling techniques" had moved much of the longshoremen's work off the vessel and onto land. S.Rep. 13; H.R.Rep. 10, U.S.Code Cong. & Admin.News 1972, p. 4707. Noted specifically was the impact of containerization. Unlike traditional break-bulk cargo handling, in which each item of cargo must be handled separately and stored individually in the hold of the ship as it waits in port, containerization permits the time-consuming work of stowage and unstowage to be performed on land in the absence of the vessel. The use of containerized ships has reduced the costly time the vessel must be in port and the amount of manpower required to get the cargo onto the vessel.31 In effect, the operation of loading and unloading has been moved shoreward; the container is a modern substitute for the hold of the vessel. As Judge Friendly observed below, "(s)tripping a container . . . is the functional equivalent of sorting cargo discharged from a ship; stuffing a container is part of the loading of the ship even though it is performed on shore and not in the ship's cargo holds." Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 53 (CA2 1976). Congress' intent to adapt the LHWCA to modern cargo-handling techniques clearly indicates that these tasks, heretofore done on board ship, are included in the category of "longshoring operations."32
29
It is therefore apparent that respondent Blundo was a statutory "employee" when he slipped on the ice. His job was to check and mark items of cargo as they were unloaded from a container. This task is clearly an integral part of the unloading process as altered by the advent of containerization and was intended to be reached by the Amendments. Indeed, the Committee Reports explicitly state: "(C)heckers, for example, who are directly involved in the loading or unloading functions are covered by the new amendment." S.Rep. 13; H.R.R. Rep. 11, U.S.Code Cong. & Admin.News 1972, p. 4708. We thus have no doubt that Blundo satisfied the status test.33
30
The congressional desire to accommodate the Act to modern technological changes is not relevant to Caputo's case, since he was injured in the old-fashioned process of putting goods already unloaded from a ship or container into a delivery truck. Another dominant theme underlying the 1972 Amendments, however, assists us in analyzing Caputo's status. Congress wanted a "uniform compensation system to apply to employees who would otherwise be covered by this Act for part of their activity." S.Rep. 13; H.R.Rep. 10-11, U.S.Code Cong. & Admin.News 1972, p. 4708. It wanted a system that did not depend on the "fortuitous circumstance of whether the injury (to the longshoreman) occurred on land or over water." S.Rep. 13; H.R.Rep. 10, U.S.Code Cong. & Admin.News 1972, p. 4708. It therefore extended the situs to encompass the waterfront areas where the overall loading and unloading process occurs. It is the view of the respondent Director of the OWCP that a uniform system must reach "all physical cargo handling activity anywhere within an area meeting the situs (test)." Brief for Federal Respondent 20. "(M)aritime employment," in his view, "include(s) all physical tasks performed on the waterfront, and particularly those tasks necessary to transfer cargo between land and water transportation." Id., at 25. Under this theory, it is clear that the Act would cover someone who, like Caputo, was engaged in the final steps of moving cargo from maritime to land transportation: putting it in the consignee's truck.
31
We need not decide, however, whether the congressional desire for uniformity supports the Director's view34 and entitles everyone performing a task such as Caputo's to benefits under the Act. It is clear, at a minimum, that when someone like Caputo performs such a task, he is to be covered. The Act focuses primarily on occupations longshoreman, harbor worker, ship repairman, shipbuilder, shipbreaker. Both the text and the history demonstrate a desire to provide continuous coverage throughout their employment to these amphibious workers who, without the 1972 Amendments, would be covered only for part of their activity. It seems clear, therefore, that when Congress said it wanted to cover "longshoremen," it had in mind persons whose employment is such that they spend at least some of their time in indisputably longshoring operations and who, without the 1972 Amendments, would be covered for only part of their activity.
32
That Caputo is such a person is readily apparent. As a member of a regular stevedoring gang, he participated on either the pier or the ship in the stowage and unloading of cargo. On the day of his injury he had been hired by petitioner Northeast as a terminal laborer. In that capacity, he could have been assigned to any one of a number of tasks necessary to the transfer of cargo between land and maritime transportation, including stuffing and stripping containers, loading and discharging lighters and barges,35 and loading and unloading trucks. App. 8. Not only did he have no idea when he set out in the morning which of these tasks he might be assigned, but in fact his assignment could have changed during the day. Thus, had Caputo avoided injury and completed loading the consignee's truck on the day of the accident, he then could have been assigned to unload a lighter. Id., at 24. Since it is clear that he would have been covered while unloading such a vessel,36 to exclude him from the Act's coverage in the morning but include him in the afternoon would be to revitalize the shifting and fortuitous coverage that Congress intended to eliminate.
33
Petitioners and the NAS seek to avoid these results by proposing a so-called "point of rest" theory.37 The term "point of rest" is claimed to be a term of art in the industry that denotes the point where the stevedoring operation ends (or, in the case of loading, begins) and the terminal operation function begins (or ends, in the case of loading). Brief for Petitioner in No. 76-454, p. 9. See, n. 4, supra. Petitioners contend that the "maritime employment of longshoremen" includes only "the stevedoring activity of the longshore gang (and those directly involved with the gang) which, in the case of unloading, takes cargo out of the hold of the vessel, moves it away from the ship's side, and carries it to its point of rest on the pier or in a terminal shed." Brief for Petitioner in No. 76-454, p. 9. Since Caputo and Blundo were handling cargo that had already reached its first point of rest, petitioners argue they are not to be covered.
34
This contention that Congress intended to use the point of rest as the decisive factor in the "status" determination has several fatal weaknesses. First, the term "point of rest" nowhere appears in the Act or in the legislative history. It is difficult to understand why, if Congress intended to stop coverage at this point, it never used the term. The absence of a term that is claimed to be so well known in the industry is both conspicuous and telling.
35
But it is not simply the term's unexplained absence that undermines petitioners' theory. More fundamentally, the theory is simply too restrictive, failing to accommodate either the language or the intent of the 1972 Amendments. The operations petitioners would cover clearly are "longshoring operations" and are appropriately covered by the Act. But petitioners fail to give effect to the obvious desire to cover longshoremen whether or not their particular task at the moment of injury is clearly a "longshoring operation." The theory does not comport with the Act's focus on occupations and its desire for uniformity. As the First Circuit noted: "The evil of the old Act was that it bifurcated coverage for essentially the same employment. The point-of-rest approach would seem to result in the same sort of bifurcation, since the same employee engaged in an activity beyond the point of rest would cease to be covered." Stockman v. John T. Clark & Son of Boston, Inc., 539 F.2d 264, 275 (1976). In addition, the theory fails to accommodate the intent to cover those longshoring operations that modern technology had moved onto the land. Coverage that stops at the point of rest excludes those engaged in loading and unloading the modern functional equivalents of the hold of the ship. As we have indicated, Congress clearly intended to cover such operations.38
36
The only support petitioners can find for their theory is the fact that it is consistent with the "typical example" given in the Committee Reports. See n. 27, supra. But as we have already indicated, supra, at 266-267, the example is equally consistent with a broader view of coverage. Consistency with an illustrative example is clearly not enough to overcome the overwhelming evidence against the theory.39
37
In view of all this, it is not surprising that the "point of rest" limitation has been rejected by all but one of the Circuits that have considered it40 and by virtually all the commentators.41 We too reject it. A theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage is incapable of defeating our conclusion that Blundo and Caputo are "employees."
IV
38
Having established that respondents Blundo and Caputo satisfied the "status" test for coverage under the Act, we consider now whether their injuries occurred on a covered "situs" "the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel)."
39
There is no dispute with respect to Caputo. The truck he was helping to load was parked inside the terminal area. As petitioner Northeast correctly concedes, this situs "unquestionably met the requirements of § 3(a) of the Act, . . . because the terminal adjoins navigable waters of the United States and parts of the terminal are used in loading and unloading ships." Brief for Petitioners in No. 76-444, p. 3 n. 1.
40
Blundo's injury was sustained while he was checking a container being stripped on a pier located within a facility known as the 21st Street Pier. The fenced-in facility was located on the water and ran between 19th and 21st Streets. It included two "finger-piers." The pier on the 21st Street end was used to berth ships for purposes of loading and unloading them. The one on the 19th Street end was used only for stripping and stuffing containers and storage. See the Administrative Law Judge's decision in Pet. for Cert. App. in No. 76-454, pp. 52a-53a. Blundo was working on this latter pier.
41
Petitioner ITO argues that Blundo was not on a covered situs because the 19th Street Pier was not "customarily used by an employer for loading (or) unloading . . . a vessel." The Court of Appeals labeled this argument "halfhearted" and dismissed it in a footnote. 544 F.2d, at 51 n. 19. We agree that the argument does not merit extended discussion.
42
First, we agree with the court below that it is not at all clear that the phrase "customarily used" was intended to modify more than the immediately preceding phrase "other areas." We note that the sponsor of the bill in the House, Representative Daniels, described this section as "expand(ing) the coverage which was limited to the ship in the present law, to the piers, wharves, and terminals." 118 Cong.Rec. 36381 (1972). There was little concern with respect to how these facilities were used.42
43
Second, even if we assume that the phrase should be read to modify the preceding terms, we agree with the BRB and the Court of Appeals that Blundo satisfied the situs test in the same way that Caputo did by working in an "adjoining . . . terminal . . . customarily used . . . in loading (and) unloading." The entire terminal facility adjoined the water and one of its two finger-piers clearly was used for loading and unloading vessels.
44
Accordingly, we conclude that when Congress sought to expand the situs to avoid anomalies inherent in a system that drew lines at the water's edge, it intended to include an area such as the one at issue here. Accord, Stockman v. John T. Clark & Son of Boston, Inc., 539 F.2d, at 271-272; I. T. O. Corp. of Baltimore v. BRB, 529 F.2d 1080, 1083-1084 (CA4 1975), modified en banc, 542 F.2d 903 (1976).
45
Since we find that both Caputo and Blundo satisfied the status and the situs tests, we affirm.
46
It is so ordered.
1
86 Stat. 1251, Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 (hereinafter 1972 Amendments).
2
A container is a large metal box resembling a truck trailer without wheels. It can carry large amounts of cargo destined for one or more consignees. If the goods are for a single consignee, the container may be removed from the pier intact and delivered directly to him, but if it carries goods destined for several consignees, it must be unloaded or "stripped" and the goods sorted according to consignee. This operation may be done at the waterfront or inland. The analogous process during the loading phase is called "stuffing." App. 86-89, 96-98, 101-103, 105-107; Brief for Federal Respondent 7 n. 4; Brief for National Association of Stevedores as Amicus Curiae 30.
3
Under the 1972 Amendments, contested compensation claims are heard by an administrative law judge. 33 U.S.C. § 919(d) (1970 ed., Supp. V). Review is then available from the BRB, a three-member board appointed by the Secretary of Labor. The BRB, created by the 1972 Amendments, is empowered "to hear and determine appeals raising a substantial question of law or fact taken by any party in interest from decisions with respect to claims of employees under (the LHWCA)." 33 U.S.C. §§ 921(b)(1), (3) (1970 ed., Supp. V); see generally 20 CFR §§ 801-802 (1976). The decisions of the BRB are subject to review in the courts of appeals. 33 U.S.C. § 921(c) (1970 ed., Supp. V).
Prior to the 1972 Amendments, cases were heard in the first instance by deputy commissioners and review was then available in the district courts. 33 U.S.C. § 921. There was no administrative review procedure for LHWCA claims.
The Benefits Review Board Service (BRBS) is the unofficial reporter of the Board's decisions. The BRB's decision in Blundo's case may be found at 2 BRBS 376 (1975) as well as in App. to Pet. for Cert. in No. 76-454, p. 45a. The Administrative Law Judge's decision is reproduced id., at 49a. A synopsis of it may be found at 1 BRBS 71 (ALJ) (1975).
4
It is necessary, at this point, to introduce some terminology. "A stevedore or stevedore contractor is responsible for loading or unloading a ship in port by contract with a shipowner, agent, or charter operator." U.S. Dept. of Labor, Office of Workers' Compensation Programs Task Force Report, Longshore and Harbor Workers' Compensation Program 103 (1976). "(A) marine terminal operator, who may own or lease the terminal property, is responsible for the safe handling of the ship, the delivery and receipt of the ship's cargo, and all movement and handling of that cargo between the point-of-rest and any place on the marine terminal property except to shipside." Ibid.
Typically, the work of getting the cargo on and off the ship is done by a "gang" of longshoremen "distributed between the ship and the pier so they can move cargo in an uninterrupted flow." Id., at 104. A member of the gang may be designated by the equipment he operates, e. g., a winchman or hustler operator, or by the area in which he works, e. g., holdman. A typical longshore gang ranges from 12 to 20 workers. Because ship arrivals are irregular, the demand for a gang varies from day to day. Ibid.
5
A lighter is a closed barge. App. 8. See discussion n. 35, infra.
6
It is not clear from the record whether loading vessels with "ships' stores" and laundry for the crew may be assigned to a terminal laborer or whether there is a separate classification called "ship laborer" for this. Compare App. 8, 24-25 with Brief for Federal Respondent 5 n. 3.
7
It was stipulated that all the cargo handled at this terminal either was going on board a vessel or had come from one. App. 6.
8
The BRB decision is reported at 3 BRBS 13 (1975). A synopsis of the Administrative Law Judge's decision appears at 2 BRBS 4 (ALJ) (1975). Both opinions may also be found in Pet. for Cert. in No. 76-444, pp. 47a, 51a.
9
Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35 (CA2 1976).
10
See ibid. ; Sea-Land Service, Inc. v. Director, Office of Workers' Compensation, 540 F.2d 629 (CA3 1976); Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533 (CA5 1976), cert. pending sub nom. P. C. Pfeiffer Co. v. Ford, No. 76-641, Halter Marine Fabricators, Inc. v. Nulty, No. 76-880, and Director, Office of Workers' Compensation Programs v. Jacksonville Shipyards, Inc., No. 76-1166; Stockman v. John T. Clark & Son of Boston, Inc., 539 F.2d 264, (CA1 1976), cert. pending, No. 76-571; I. T. O. Corp. of Baltimore v. Benefits Review Board, 542 F.2d 903 (CA4 1976) (en banc), cert. pending sub nom. Maritime Terminals, Inc. v. Brown, No. 76-706, and Adkins v. I. T. O. Corp. of Baltimore, No. 76-730. For discussion of these cases, see n. 40, infra.
11
The Court of Appeals questioned whether the Director of the Office of Workers' Compensation Programs (OWCP), the federal respondent here, was a proper party in the Court of Appeals. Pittston Stevedoring Corp. v. Dellaventura, supra, 544 F.2d, at 42 n. 5. (The OWCP was established by the Secretary of Labor and given the responsibility to administer several benefits programs, including the LHWCA. 20 CFR § 701.201 (1976).) It concluded that some federal participation was proper and did not reach the question whether the BRB should have been substituted for the Director. Petitioners named the Director rather than the BRB as a respondent in the Court of Appeals and neither party has raised any question in this Court concerning the identity of the federal respondent. This question is therefore not before us. The Department of Labor has recently promulgated a regulation making it clear that the Director of OWCP is the proper federal party in a case of this nature. 42 Fed.Reg. 16133 (Mar.1977).
12
H.R.Rep.No.639, 67th Cong., 2d Sess., 2 (1922). More fully, the Report noted:
"It is easy to understand the reason why the representatives of the workmen ask for compensation under State Laws. The longshoremen are no more peripatetic workmen than are the repair men. They do not leave the port in which they work; they do not go into different jurisdictions. They are part of the local labor force and are permanently subject to the same conditions as are other local workmen. The work of longshoremen is not all on ship. Much of it is on the wharves. They may be at one moment unloading a dray or a railroad car or moving articles from one point on the dock to another, the next actually engaged in the process of loading or unloading cargo. Their need for uniformity is one law to cover their whole employment, whether directly part of the process of loading or unloading a ship or not."
See also S.Rep.No.139, 65th Cong., 1st Sess., 1 (1917).
13
"Injury," "employee," and "employer" were defined in 33 U.S.C. §§ 902(2), (3), (4):
"(2) The term 'injury' means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury. . . .
"(3) The term 'employee' does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.
"(4) The term 'employer' means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock)."
14
Title 33 U.S.C. § 903 defined the coverage provided by the Act:
"(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law. No compensation shall be payable in respect of the disability or death of
"(1) A master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or
"(2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof.
"(b) No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another."
15
For discussion of the history, see Victory Carriers, Inc. v. Law, 404 U.S. 202, 204-209, 92 S.Ct. 418, 420-423, 30 L.Ed.2d 383 (1971); Nacirema Operating Co. v. Johnson, 396 U.S. 212, 216-224, 90 S.Ct. 347, 350-354, 24 L.Ed.2d 371 (1969); Gilmore 417-423; 4 A. Larson, Law of Workmen's Compensation, § 89 (1976); Note, Broadened Coverage Under the LHWCA, 33 La.L.Rev. 683 (1973).
16
Nacirema Operating Co., supra, reversed the en banc decision of the Fourth Circuit in Marine Stevedoring Corp. That decision involved four separate cases in which longshoremen had been injured in different incidents while engaged in loading cargo vessels. The Deputy Commissioner awarded compensation to the man hurled into the water by his accident; the others were found to be outside the Act's coverage. The Court of Appeals found that all four should be compensated. No petition for certiorari was sought in the case involving the worker who fell in the water and thus this Court did not have that question before it.
17
The Court reiterated its suggestion to Congress in Victory Carriers, Inc. v. Law, supra, which held that a longshoreman injured on the pier by a pier-based forklift could not recover from the shipowner under a warranty of seaworthiness. The Court noted the sturdiness of the Jensen line in the absence of statutory modification. It observed, however, that "if denying federal remedies to longshoremen injured on land is intolerable Congress has ample power under Arts. I and III of the Constitution to enact a suitable solution." 404 U.S., at 216, 92 S.Ct., at 427.
18
The Report of the Senate Committee on Labor and Public Welfare described the need for the bill:
"The Longshoremen's and Harbor Workers' Compensation Act was last amended in 1961, at which time the maximum benefit under the Act was set at $70 per week. . . . Clearly, in order to provide adequate income replacement for disabled workers covered under this law a substantial increase in benefits is urgently required.
"While every one has agreed since at least the mid-1960's that the benefits under this Act should be raised, there has been some dispute over the years as to whether such benefits should be raised so long as this compensation law was not the exclusive remedy for an injured worker. It has been the feeling of most employers that while they were willing to guarantee payment to an injured worker regardless of fault, they would only do so if the right to such payment was the exclusive remedy and they would not be subject to additional law suits because of that injury.
"Since 1946, due to a number of decisions by the U.S. Supreme Court (starting with Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946)), it has been possible for an injured longshoreman to avail himself of the benefits of the Longshoremen's and Harbor Workers' Compensation Act and to sue the owner of the ship on which he was working for damages as a result of this injury. The Supreme Court has ruled that such ship owner, under the doctrine of seaworthiness, was liable for damages caused by any injury regardless of fault. In addition, (under the ruling of Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956),) shipping companies generally have succeeded in recovering the damages for which they are held liable to injured longshoremen from the stevedore on theories of express or implied warranty, thereby transferring their liability to the stevedore company, the actual employer of the longshoremen." S.Rep. 4.
"The end result is that, despite the provision in the Act which limits an employer's liability to the compensation and medical benefits provided in the Act, a stevedore-employer is indirectly liable for damages to an injured longshoreman who utilizes the technique of suing the vessel under the unseaworthiness doctrine." Id., at 9.
"The social costs of these law suits, the delays, crowding of court calendars and the need to pay for lawyers' services have seldom resulted in a real increase in actual benefits for injured workers." Id., at 4.
19
See Pub.L. 92-576, §§ 5-11, 18, 86 Stat. 1253.
20
S.Rep. 12-13. This appears in the section of the report called Extension of Coverage to Shoreside Areas. The House Report, H.R.Rep.No. 92-1441, pp. 10-11 (1972) (hereinafter H.R.Rep.), U.S.Code Cong. & Admin.News 1972, pp. 4698, 4707 contains the identical section.
21
33 U.S.C. § 903 (1970 ed., Supp. V). Congress also removed the provision that precluded federal recovery if a state workmen's compensation remedy were available. It retained the exclusions contained in 33 U.S.C. §§ 903(a)(1), (a) (2), and (b). See n. 14, supra.
22
The definition of "employee" excluded "a master or member of a crew of any vessel, (and) any person engaged by the master to load or unload or repair any small vessel under eighteen tons net." 33 U.S.C. § 902(3). In addition, the coverage section, § 903, provided that no compensation was payable in respect of the disability or death of an employee of the United States. See n. 14, supra. These exclusions have been retained by the 1972 Amendments, see n. 21, supra.
23
The definition of "employer" was changed so as to correspond with the broadened definition of navigable waters. Title 33 U.S.C. § 902(4) (1970 ed., Supp. V) reads:
"The term 'employer' means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel)."
24
There is no question in these cases that the injuries "arose out of and in the course of employment" and that the employers are statutory employers. See App. to Pet. for Cert. in No. 76-454, pp. 53a-54a; App. to Pet. for Cert. in No. 76-444, pp. 52a-53a; Brief for Petitioners in No. 76-444, p. 3.
25
As the definition of "employee" makes clear, the category of persons engaged in maritime employment includes more than longshoremen and persons engaged in longshoring operations. It is, however, unnecessary in this case to look beyond these two subcategories.
This case also does not involve the question whether Congress excluded people who would have been covered before the 1972 Amendments; that is, workers who are injured on navigable waters as previously defined. See Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (CA9), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976).
26
The Reports and discussions used only the terms of the statute without elaboration. Thus, for example, the Section-by-Section Analysis in the Senate Report states:
"Section 2(a) amends section 2(3) of the Act to define an 'employee' as any person engaged in maritime employment. The definition specifically includes any longshoreman or other person engaged in longshoreing (sic ) operations, and any harborworker, including a ship repairman, shipbuilder and shipbreaker. It does not exclude other employees traditionally covered but retains that part of 2(3) which excludes from the definition of 'employee' masters, crew members or persons engaged by the master to unload, load or repair vessels of less than eighteen tons net." S.Rep. 16.
See also H.R.Rep. 14.
And in the section describing the shoreward extension, the Committee Reports state:
"The Committee believes that the compensation payable to a longshoreman or a ship repairman or builder should not depend on the fortuitous circumstance of whether the injury occurred on land or over water. Accordingly, the bill would amend the Act to provide coverage of longshoremen, harbor workers, ship repairmen, ship builders, shipbreakers, and other employees engaged in maritime employment (excluding masters and members of the crew of a vessel) if the injury occurred either upon the navigable waters of the United States or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other area adjoining such navigable waters customarily used by an employer in loading, unloading, repairing, or building a vessel." S.Rep. 13; H.R.Rep. 10, U.S.Code Cong. & Admin.News 1972, p. 4708.
27
"The intent of the Committee is to permit a uniform compensation system to apply to employees who would otherwise be covered by this Act for part of their activity. To take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area. The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity. Thus, employees whose responsibility is only to pick up stored cargo for further trans-shipment would not be covered, nor would purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo. However, checkers, for example, who are directly involved in the loading or unloading functions are covered by the new amendment. Likewise the Committee has no intention of extending coverage under the Act to individuals who are not employed by a person who is an employer, i. e., a person at least some of whose employees are engaged, in whole or in part in some form of maritime employment. Thus, an individual employed by a person none of whose employees work, in whole or in part, on navigable waters, is not covered even if injured on a pier adjoining navigable waters." S.Rep. 13; H.R.Rep. 10-11, U.S.Code Cong. & Admin.News 1972, p. 4708.
28
That the example is not exhaustive is clear. Some types of cargo, for example, are never brought to a "holding or storage area" but are placed directly on a truck or railroad car for immediate inland movement. See Brief for Petitioner in No. 76-454, p. 38 n. 46; Tr. of Oral Arg. 44. And, while all would agree that persons bringing such cargo directly from a ship to a truck are engaged in maritime employment, see infra, at 274-275, the example does not mention such activity. In addition, while it is incontrovertible that workers engaged in the process of loading a ship and performing steps analogous to those mentioned in the example that is, moving cargo from storage and placing it immediately on the ship are covered, the fact is that the example also does not mention these steps. See also discussion, n. 38, infra.
29
Accord, Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d, at 54; Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d, at 540. The First Circuit in fact accused Congress of "seemingly (going) out of its way to avoid taking any express stance on the status of those engaged in stuffing and stripping containers as part of the loading and unloading process just as it is silent on the status of other terminal employees engaged in moving, storing and culling cargo on the pier." Stockman v. John T. Clark & Son of Boston, Inc., 539 F.2d, at 274.
30
We find consideration of the purposes more enlightening than looking simply at whether respondents belong to the International Longshoremen's Association. See Brief for ILA as Amicus Curiae 15. We cannot assume that Congress intended to make union membership the decisive factor. The vagaries of union jurisdiction are unrelated to the purposes of the Act. Pittston Stevedoring Corp., supra, 544 F.2d, at 52; Stockman, supra, 539 F.2d, at 272; Jacksonville Shipyards, Inc., supra, 539 F.2d, at 543-544; but cf. Weyerhaeuser Co. v. Gilmore, 528 F.2d, at 962.
The private respondents suggest, Brief for Respondents Caputo et al. 19-21, that Congress intended to use the definitions found in the Bi-State Compact between New York and New Jersey that created the Bi-State Waterfront Commission, and was approved by Congress, 67 Stat. 541. The definitions may be found in N.Y.Unconsol. Laws §§ 9806, 9905 (McKinney 1974). Section 9806 provides, in relevant part:
" 'Pier' shall include any wharf, pier, dock or quay.
" 'Other waterfront terminal' shall include any warehouse, depot or other terminal (other than a pier) which is located within one thousand yards of any pier in the port of New York district and which is used for waterborne freight in whole or substantial part.
" 'Longshoreman' shall mean a natural person, other than a hiring agent, who is employed for work at a pier or other waterfront terminal, either by a carrier of freight by water or by a stevedore
"(a) physically to move waterborne freight on vessels berthed at piers, on piers or at other waterfront terminals, or
"(b) to engage in direct and immediate checking of any such freight or of the custodial accounting therefor or in the recording or tabulation of
the hours worked at piers or other waterfront terminals by natural persons employed by carriers of freight by water or stevedores, or
"(c) to supervise directly and immediately others who are employed as in subdivision (a) of this definition."
Section 9905 provides supplementary definitions:
"(6) 'Longshoreman' shall also include a natural person, other than a hiring agent, who is employed for work at a pier or other waterfront terminal
"(a) either by a carrier of freight by water or by a stevedore physically to perform labor or services incidental to the movement of waterborne freight on vessels berthed at piers, on piers or at other waterfront terminals, including, but not limited to, cargo repairmen, coopers, general maintenance men, mechanical and miscellaneous workers, horse and cattle fitters, grain ceilers and marine carpenters, or
"(b) by any person physically to move waterborne freight to or from a barge, lighter or railroad car for transfer to or from a vessel of a carrier of freight by water which is, shall be, or shall have been berthed at the same pier or other waterfront terminal, or
"(c) by any person to perform labor or services involving, or incidental to, the movement of freight at a waterfront terminal as defined in subdivision (10) of this section.
"(10) 'Other waterfront terminal' shall also include any warehouse, depot or other terminal (other than a pier), whether enclosed or open, which is located in a marine terminal in the port of New York district and any part of which is used by any person to perform labor or services involving, or incidental to, the movement of waterborne freight or freight.
"As used in this section, 'marine terminal' means an area which includes piers, which is used primarily for the moving, warehousing, distributing or packing of waterborne freight or freight to or from such piers, and which, inclusive of such piers, is under common ownership or control."
While we find these definitions useful indicators of the terminology used by the industry, we agree with the court below that to assume, absent any indication in the legislative history, that Congress in 1972 had in mind this action of the 1953 Congress is "to attribute a degree of acumen few Congressmen would claim." 544 F.2d, at 50.
31
"(T)he greatest economies promised by containerization are found in the efficiency of using a specially fitted all-container ship. A most important part of the costs of running a vessel is the dead time in port while loading and unloading. A ship in port earns no income and its heavy fixed costs continue. Moreover, the fast turnaround time of container ships a container ship can unload and reload in 36-48 hours compared to the seven or eight days required for conventional ships substantially cuts the number of ships needed to handle any given volume of cargo. . . .
"Labor productivity is astonishingly increased by containerization. One major shipping company reported that each of its work gangs on a conventional ship produced an average of 15 tons per hour compared with 300 tons an hour worked by one gang at a container ship hatch. More generally, the industry considers that 'it would take 126 men 84 hours each, or a total of 10,584 man-hours, to discharge and load about 11,000 tons of cargo aboard a conventional ship. The same amount of cargo on a container vessel can be handled by 42 men working 13 hours each or a total of 546 man hours.' " Ross, Waterfront Labor Response to Technological Change: A Tale of Two Unions, 21 Labor L.J. 397, 399-400 (1970).
See Goldberg, Containerization as a Force for Change on the Waterfront, 91 Monthly Labor Rev. 8, 9 (1968).
32
Accord, Pittston Stevedoring Corp., 544 F.2d, at 53; I. T. O. Corp. of Baltimore, 542 F.2d, at 905; Stockman, 539 F.2d, at 275-277. As one commentator observed:
"The work of the longshoreman, the loading and unloading of cargo, remains the same; only the procedure and the place of performance (have) changed. It seems unlikely that Congress would acknowledge that longshoring today involves more shore-based activity than formerly and then extend coverage only to those longshoremen working closest to the ship." Comment, Maritime Law LHWCA Recovery Denied Longshoremen Injured Landward of the "Point of Rest," 10 Suffolk U.L.Rev. 1179, 1188 (1976).
33
We find no significance in the fact that the container Blundo was stripping had been taken off a vessel at another pier and then moved to the site of the injury. Until the container was stripped, the unloading process was clearly incomplete. The only geographical concern Congress exhibited was that the operation take place at a covered situs. See Part IV, infra. It was precisely Congress' intent to accommodate the mobility of containers and the ability to transport and strip them at locations removed from the ship.
34
While the Director identifies this as the BRB's position as well as his own, Brief for Federal Respondent 20, it appears to us that the BRB has gone further than this position suggests. For example, the BRB found that a clerk, who worked in an office processing the paperwork for the delivery of cargo to truckmen for removal from the terminal, was a covered "employee." It reasoned that this function, although clerical in nature, was "essential to the removal of cargo from the terminal and was an integral part of longshoring operations." Farrell v. Maher Terminals, Inc., 3 BRBS 42, 45 (1975). Contrary to the view expressed by the Director, the BRB showed no concern with the fact that the employee did not handle cargo. Citing the Committee Reports, see n. 27, supra, the Third Circuit has rejected this conclusion and granted a petition for review. Maher Terminals, Inc. v. Farrell, 548 F.2d 476, 478 (1977).
Regardless of whether the view advanced by the Director is the position of the BRB, we agree with Judge Friendly that it would be useful for the BRB to engage in an extensive study of the structure of work on the various piers of the country. While the record before us contains sufficient information to enable us to decide the present cases, such a study will be helpful for future cases.
35
Lighters and barges are part of the modern technological advancements to which Congress referred when it mentioned "LASH-type vessels." The term LASH is an acronym for "lighter aboard ship." The National Association of Stevedores (NAS) describes the system as follows:
"(C)argo is placed in special uniform size 'lighters,' or barges, which are called LASH barges to differentiate them from river barges. The LASH barges are towed from the loading port to the location of the LASH vessel, which is sometimes called the mother ship. The barges are mechanically loaded by a crane on the mother ship and are stacked in specially constructed holds in the mother ship. The actual stowage or unstowage of the barges with their contents in the mother ship requires substantially fewer longshoremen than does the loading of cargo into a breakbulk type ship. A very similar type of operation called SEABEE differs from the LASH operation described only in the size of the barge and the mechanical means for loading or unloading the barge onto or from the mother SEABEE ship.
"The actual loading of the barges is performed by longshoremen in precisely the same manner traditionally employed in the loading or unloading of a breakbulk ship. However, in most instances the size of the longshore gang involved in LASH and SEABEE operations is smaller than the regular ship's gang primarily because of the smaller size of the barge. The barges are in fact vessels and ply the navigable waters of the United States and may be loaded or unloaded at any inland or coastal waterfront facility." Brief for NAS as Amicus Curiae 27-28.
36
The NAS specifically agrees:
"Workers who actually load or unload the barges are engaged in traditional longshore operations and if injured while so engaged would obviously be entitled to the benefits of the LHWCA unless their employer were a state, municipal or other public political entity." Id., at 28.
37
Petitioner Northeast also argues that the particular cargo Caputo was handling at the moment of injury was no longer in "maritime commerce" because it had been at least five days since it had been taken off a ship. See the Administrative Law Judge's decision in App. to Pet. for Cert. in No. 76-444, p. 52a. But the consignee's delay in picking up the cargo has no effect on the character of the work required to effectuate the transfer of the cargo to the consignee. The work performed by the longshoreman is the same whether performed the day the cargo arrives in port or weeks later.
In addition, we reiterate that Caputo did not fall within the excluded category of employees "whose responsibility is only to pick up stored cargo for further trans-shipment." S.Rep. 13; H.R.Rep. 11, U.S.Code Cong. & Admin.News 1972, p. 4708. As we indicated, supra, at 266-267, that exclusion pertains to workers, such as the consignees' truckdrivers Caputo was helping, whose presence at the pier or terminal is for the purpose of picking up cargo for further shipment by land transportation.
38
Moreover, we are not convinced that the point-of-rest theory provides the workable definition that petitioners claim for it. The "point", varies from port to port and with different types of cargo. See the Stevedore and Marine Terminal Industry of the United States (unpublished survey by the NAS) (1974-1975); n. 28, supra. The point can be moved seaward or landward at the whim of the employer. Such characteristics make it inconsistent with the uniform system Congress sought to design. As Judge Craven observed, when a panel of the Fourth Circuit adopted the point-of-rest theory and refused to cover persons holding jobs similar to Caputo's and Blundo's:
"(Respondents) will, I think, be surprised to learn that they are not longshoremen, and astonished to discover that they are not engaged in maritime employment of any kind. If they are not, as my brothers hold, then the Congress has labored prodigiously only to have accomplished nothing at all in its effort to simplify the problems of maritime workers' compensation. . . . Henceforth, injured employees and their counsel must comb the waterfronts of this circuit, probing hopelessly, like Diogenes with his lantern, for that elusive 'point of rest' upon which coverage depends." I. T. O. Corp. of Baltimore v. BRB, 529 F.2d 1080, 1089 (1975) (dissenting opinion), modified en banc, 542 F.2d 903 (1976).
39
Petitioners also contend that it is too expensive to extend coverage beyond the point of rest and that Congress did not intend to impose such expenses on the employers. Brief for Petitioner in No. 76-454, pp. 68-73. However, there is nothing in the legislative history to indicate what Congress anticipated the expanded coverage would cost.
40
The Court of Appeals for the Second Circuit, in the case below, rejected the point-of-rest theory and awarded compensation to Blundo and Caputo for reasons similar to those upon which we rely. Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35 (1976). The First Circuit, as noted in n. 29, supra, has also found the point-of-rest theory incompatible with Congress' desire for uniformity. Also relying on factors similar to those we consider, the court concluded that the operations of stuffing and stripping containers were clearly longshoring operations and affirmed a compensation award to one so engaged. Stockman, 539 F.2d, at 272-277.
The Third Circuit has extended coverage well beyond the point of rest. Sea-Land Service, Inc. v. Director, Office of Workers' Compensation, 540 F.2d 629 (1976). Its analysis has differed from the other Circuits. It concluded that Congress meant to exercise its full constitutional authority and to "afford federal coverage to all those employees engaged in handling cargo after it has been delivered from another mode of transportation for the purpose of loading it aboard a vessel, and to all those employees engaged in discharging cargo from a vessel up to the time it has been delivered to a place where the next mode of transportation will pick it up." Id., at 638. The Circuit appears to have essentially discarded the situs test, holding that only "(an) employment nexus (status) with maritime activity is (necessary)" and that the situs of the maritime employee at the time of injury is irrelevant. Ibid. See also Sea-Land Service, Inc. v. Director, Office of Workers' Compensation Programs, 552 F.2d 985 (CA3 1977); Maher Terminals, Inc. v. Farrell, 548 F.2d 476 (CA3 1977).
The Fifth Circuit also has rejected the point-of-rest theory, calling it a "hypertechnical construction." Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d, at 540. It affirmed compensation awards to a worker securing a vehicle to a railway car in preparation for its transportation inland and to a worker unloading bales of cotton from a wagon and stacking them in the warehouse to await future placement on a ship. The awards were affirmed because both people were involved in "an integral part of the ongoing process of moving cargo between land transportation and a ship." Id., at 543-544.
The Fourth Circuit is the one Circuit that has considered the theory and not rejected it. I. T. O. Corp. of Baltimore v. BRB, 542 F.2d 903 (1976) (en banc). But it has also not accepted it. While three of six judges sitting en banc accepted the theory, the fourth held that the Act covered certain cargo handling within the terminal shoreside of the point of rest. He found coverage for two workers situated similarly to Blundo, characterizing their activities as part of the overall loading and unloading function. Id., at 905. He denied coverage to a worker in the same situation as Caputo. The other two judges of the en banc court would have covered all three workers since they were engaged in "handl(ing) ships' cargo." I. T. O. Corp. of Baltimore v. BRB, 529 F.2d, at 1097 (Craven, J., dissenting).
41
Only one of the commentators discussing the Act prior to the early cases even thought of the point of rest as a line of demarcation, but he makes no effort to explain why the term was never mentioned in the Act or history. Vickery, Some Impacts of the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, 41 Ins.Counsel J. 63 (1974). Gilmore, §§ 6-51, p. 427; Gorman, The Longshoremen's and Harbor Workers' Compensation Act After the 1972 Amendments, 6 J. Mar.L. & Com. 1, 9-10 (1974); Note, The 1972 Amendments to Section 903 of the Longshoremen's and Harbor Workers' Compensation Act, 4 Rutgers Camden L.J. 404 (1973); Note, Maritime Jurisdiction and Longshoremen's Remedies, 1973 Wash.U.L.Q. 649; Note, Broadened Coverage Under the LHWCA, 33 La.L.Rev. 683 (1973).
Those writing after the theory had been advanced in the courts have universally found it inadequate. 4 A. Larson, supra, n. 15, § 89.42. Note, Shoreside Coverage Under the Longshoremen's and Harbor Workers' Compensation Act, 18 B.C.Ind. & Com.L.Rev. 135 (1976); Comment, Maritime Law LHWCA Recovery Denied Longshoremen Injured Landward of "Point of Rest," 10 Suffolk U.L.Rev. 1179 (1976); Note, Admiralty Law/Workmen's Compensation On the Waterfront, 54 N.C.L.Rev. 925 (1976); Comment, The Longshoremen's and Harbor Workers' Compensation Act: Coverage After the 1972 Amendments, 55 Texas L.Rev. 99, 116-120 (1976).
42
Petitioner ITO contends that statements in the Committee Reports indicate that the "customarily used" requirement is to apply to all the specified areas. It points to the Reports' intent to exclude persons not engaged in loading, unloading, repairing or building a vessel "just because they are injured in an area adjoining navigable waters used for such activity," S.Rep. 13; H.R.Rep. 11, U.S.Code Cong. & Admin.News 1972, p. 4708, and the Senate Report's description of the bill as "expand(ing) the coverage of this Act to cover injuries occurring in the contiguous dock area related to longshore and ship repair work." S.Rep. 2. These statements, however, serve to undermine rather than to help ITO's attempt to read the situs requirement to exclude the pier on which Blundo was working. Even assuming they suggest a usage requirement for all such adjoining piers, it is clear that the usage is broad enough to encompass stripping and stuffing containers, integral parts of the overall loading and unloading process.
| 78
|
432 U.S. 233
97 S.Ct. 2339
53 L.Ed.2d 306
Johnnie B. HANKERSON, Petitioner,v.State of NORTH CAROLINA.
No. 75-6568.
Argued Feb. 23, 1977.
Decided June 17, 1977.
Syllabus
Prior to the decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, petitioner was convicted in a North Carolina court of second-degree murder over his claim that he acted in self-defense. The trial judge had instructed the jury that if the State proved beyond a reasonable doubt that petitioner intentionally killed the victim with a deadly weapon the law raised presumptions that the killing was unlawful and that it was done with malice, and that in order to excuse his act petitioner had to prove to the jury's "satisfaction" that he acted in self-defense. The North Carolina Supreme Court, affirmed over petitioner's objection to such instructions, refusing to give retroactive application to Mullaney. Although holding that a burden to "satisfy" a jury of a fact is not "significantly less" than persuasion by a preponderance of the evidence and that therefore the charge was erroneous under Mullaney, which required the State to establish all elements of a criminal offense beyond a reasonable doubt and which invalidated presumptions that shifted the burden of proving such elements to the defendant, the court concluded that the retroactive application of Mullaney would have a devastating impact on the administration of justice. Held:
1. The North Carolina Supreme Court erred in declining to hold the Mullaney rule retroactive. Ivan V. v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659. While in deciding whether a new constitutional rule is to be applied retroactively it is proper to consider the State's reliance on the old rule and the impact of the new rule on the administration of justice if the degree to which the new rule enhances the integrity of the factfinding process is sufficiently small, " 'where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule (is) given complete retroactive effect.' " Id., at 204, 92 S.Ct. at 1952 (emphasis supplied). The Mullaney rule falls within this latter category, since it was designed to diminish the probability that an innocent person would be convicted and thus to overcome an aspect of a criminal trial that "substantially impairs its truth-finding function." Pp. 240-244.
2. Nor can the North Carolina Supreme Court's judgment be affirmed on the ground that, even if Mullaney is applied retroactively, the trial court's instructions left the burden of disproving self-defense beyond a reasonable doubt on the prosecution, or at least did not require the accused to prove self-defense by a preponderance of the evidence, and thus did not violate the Mullaney rule. The North Carolina Supreme Court construed the instructions to the contrary, and since such interpretation is a matter of state law, there is no basis for disagreeing with it. Pp. 244-245.
288 N.C. 632, 220 S.E.2d 575, reversed.
Lawrence G. Diedrick, Rocky Mount, N.C., for the petitioner.
Charles M. Hensey, Raleigh, N. C., for the respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The issue in this case is whether the North Carolina Supreme Court correctly declined to give retroactive application to this Court's decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed. 508 (1975).
2
* Petitioner Hankerson was convicted after a jury trial of second-degree murder and sentenced to 20-25 years in prison. It was conceded at his trial that petitioner killed a man named Gregory Ashe by shooting him through the heart with a pistol at 11 at night on September 29, 1974. The issue at trial was whether petitioner acted in self-defense. The relevant evidence is described below.
3
Ashe and two friends, Dancy and Whitley, were, according to the testimony of the latter two, driving around in Ashe's car on the evening of September 29. They went to a pool hall shortly before 11 p. m. and, on discovering that the pool hall was closed, returned to Ashe's car. The car would not start. Ashe asked his companions for a light for his cigarette, but neither had one. Whitley began walking to his home, which was one block away. Ashe and Dancy followed him. Then Ashe decided to return to his car to try to "crank" it. Dancy, according to his and Whitley's testimony, ran after Whitley. Both testified that they then heard a gunshot, heard Ashe yell that he had been shot, and saw petitioner's car speed away. Ashe's body was not found for an hour, and when it was, a fully burned cigarette was lodged between two fingers.
4
Petitioner testified at trial that he had been driving his car very slowly because of holes in the road when someone asked him for a light. Through his mirror he saw two men. One, i. e., Ashe, walked up to the driver's window. Petitioner pushed his cigarette lighter in and gave it to Ashe. When the lighter was returned, petitioner felt the car shake and saw the other man at the other door, which was locked. Ashe then grabbed petitioner's shoulder with his right hand, and put a knife to petitioner's throat with his left hand. Petitioner then grabbed his gun and shot Ashe. The knife fell inside the car. Petitioner then drove away. Shortly after the murder, the knife was recovered by a policeman from petitioner's car. Petitioner readily admitted the shooting at that time and told a story to the policeman which was roughly equivalent to his trial testimony.
5
The State then introduced evidence tending to prove that Ashe had never been seen with a knife of the type found in petitioner's car; that petitioner falsely claimed to the policeman who questioned him shortly after the shooting no longer to have possession of the gun; that Ashe was right handed, even though petitioner testified that the knife was wielded with Ashe's left hand; and that although petitioner had told police that Ashe had left a grease mark on his shirt when Ashe grabbed him, Ashe had no grease on his hand when his body was examined. The State argued in its summation that Ashe would not still have had his cigarette in his hand when shot if he had, as petitioner testified, used two hands to attack petitioner.
6
(1, 2) The jury was instructed, in part, as follows:
7
"I charge that for you to find the defendant guilty of second degree murder, the State must prove two things beyond a reasonable doubt, first, that the defendant intentionally and without justification or excuse and with malice shot Gregory Ashe with a deadly weapon . . . ."1 App. 9 (emphasis added).
8
The judge instructed the jury that self-defense constituted an excuse for an intentional killing.2 However, he instructed the jury:
9
"If the State proves beyond a reasonable doubt or it is admitted that the defendant intentionally killed Gregory Ashe with a deadly weapon, or intentionally inflicted a wound upon Gregory Ashe with a deadly weapon, that proximately caused his death, the law raises two presumptions; first, that the killing was unlawful, and second, that it was done with malice. . . . Then there will be some other things I will charge you about, but, nothing else appearing, if you are satisfied of those two things beyond a reasonable doubt then you would find the defendant guilty of second degree murder.
10
". . . (I)n order to excuse his act altogether on the grounds of self-defense, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that he acted in self-defense." Id., at 10 (emphasis added).3
11
The judge proceeded to instruct on the elements of self-defense.4 No objection was made to any of these instructions at the trial, and the jury found petitioner guilty of second-degree murder.
12
Petitioner objected to the above-quoted portions of the instructions to the jury for the first time on direct review in the Supreme Court of North Carolina. He argued that the instructions placed a burden on him to persuade the jury that he was not guilty, by proving that the killing was not unlawful; and he claimed that the Due Process Clause of the Fourteenth amendment as construed in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), required that the State persuade the jury beyond a reasonable doubt as to all elements of the crime, including that of unlawfulness here the absence of self-defense.
13
The North Carolina Supreme Court agreed that unlawfulness was an essential ingredient of the crime, 288 N.C. 632, 648-652, 220 S.E.2d 575, 587-589 (1975), and ruled that under this Court's recently decided cases, the Due Process Clause required that the jury be instructed in a case such as this that the State must persuade it beyond a reasonable doubt that the killing was not in self-defense. Under the presumptions contained in the trial judge's instructions, once an intentional killing with a deadly weapon had been shown, petitioner had the burden to "satisfy" the jury that he had acted in self-defense. The North Carolina Supreme Court held that a burden to "satisfy" the jurors of a fact is not "significantly less" than a burden to persuade them of the fact by a preponderance of the evidence. The court therefore held that the charge was erroneous under this Court's decision in Mullaney v. Wilbur, supra, which required the State to establish all elements of a criminal offense beyond a reasonable doubt and which, despite longstanding practice to the contrary as in North Carolina since 1864 invalidated presumptions that shifted the burden of proof with respect to such elements to the defendant. The North Carolina Supreme Court stated the rule for future cases:
14
"If there is evidence in the case of all the elements of self-defense, the mandatory presumption of unlawfulness disappears but the logical inferences from the facts proved may be weighed against this evidence. If upon considering all the evidence, including the inferences and evidence of self-defense, the jury is left with a reasonable doubt as to the existence of unlawfulness it must find the defendant not guilty." 288 N.C., at 651-652, 220 S.E.2d, at 589.
15
Petitioner's conviction was nevertheless affirmed, for it was concluded that the constitutional rule announced in Mullaney was inapplicable in this case because it was handed down after the conclusion of petitioner's trial.5 In declining to apply Mullaney v. Wilbur to trials occurring before the date on which it was decided, the North Carolina Supreme Court recognized that in Ivan V. v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972), we held fully retroactive our earlier decision in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), to the effect that the Federal Constitution requires the States to apply the reasonable-doubt standard of proof in juvenile proceedings. It also recognized that, as in Ivan V., it was dealing with a constitutional rule the primary purpose of which was to prevent the erroneous conviction of innocent persons. Even so, the court concluded that the retroactive application of Mullaney would have a devastating impact on the administration of justice in this country in view of the number of murderers who would be released many of whom could not now be retried in the eight States that the court identified as placing the burden of proving self-defense on the defendant. Accordingly, it declined to apply Mullaney to trials occurring before the date on which it was decided.
16
(3) This Court granted Hankerson's petition for a writ of certiorari, which raised the single question whether Mullaney should be held retroactive. 429 U.S. 815, 97 S.Ct. 56, 50 L.Ed.2d 75. The State of North Carolina has filed an answering brief in which it argues (1) that the North Carolina Supreme Court was correct in holding Mullaney not retroactive; and (2) that in any event the judgment below should be affirmed because the instructions given in this case did leave the burden of disproving self-defense beyond a reasonable doubt on the prosecution, or at least did not require the accused to prove self-defense by a preponderance of the evidence in contravention of Mullaney. These are the only two issues before this Court, and we treat them in order.6
II
17
(4) The Supreme Court of North Carolina erred in declining to hold retroactive the rule in Mullaney v. Wilbur, supra. In Ivan V. v. City of New York, supra, 407 U.S., at 204-205, 92 S.Ct., at 1952, this Court addressed the question whether our decision in In re Winship, supra holding the reasonable-doubt standard applicable to state juvenile proceedings was to be applied retroactively. The Court there said:
18
" 'Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.' Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971). See Adams v. Illinois, 405 U.S. 278, 280, 92 S.Ct. 916, 918, 31 L.Ed.2d 202 (1972); Roberts v. Russell, 392 U.S. 293, 295, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100 (1968).
19
"Winship expressly held that the reasonable-doubt standard 'is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence that bedrock "axiomatic and elementary" principle whose "enforcement lies at the foundation of the administration of our criminal law" . . . "Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt." To this end, the reasonable-doubt standard is indispensable, for it "impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue." ' 397 U.S., at 363-364, 90 S.Ct. (1068), 1072.
20
"Plainly, then, the major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect." 407 U.S., at 204-205, 92 S.Ct., at 1952.
21
Ivan V. controls this case. In Mullaney v. Wilbur, as in In re Winship, the Court held that due process requires the States in some circumstances to apply the reasonable-doubt standard of proof rather than some lesser standard under which an accused would more easily lose his liberty. In Mullaney, as in Winship, the rule was designed to diminish the probability that an innocent person would be convicted and thus to overcome an aspect of a criminal trial that "substantially impairs the truth-finding function."
22
Respondent and the North Carolina Supreme Court seek to avoid the force of Ivan V. on two grounds. First, the North Carolina Supreme Court thought that the State had justifiably relied upon the validity of the burden-shifting presumptions flowing from intentional killing with a deadly weapon before Mullaney v. Wilbur, whereas the State in Ivan V. should have known, even before Winship, that the reasonable-doubt standard of proof would be held applicable to juvenile proceedings. Second, it viewed the retroactive impact of the Mullaney rule on the administration of justice as far more devastating than the retroactive impact of Winship. Winship involved only juveniles, while Mullaney would affect the convictions of murderers.
23
Respondent recognizes that Ivan V. did not rely on the absence of reliance by the State on pre-Winship law or on the absence of a devastating impact on the administration of justice. However, respondent claims that in deciding whether a new constitutional rule is to be applied retroactively, the Court has traditionally inquired not only, as in Ivan V., into the purpose of the rule but also into the extent of the State's justified reliance on the old rule and the impact that retroactive application of the new rule would have on the administration of justice. See, e. g., Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 82 S.Ct. 459, 15 L.Ed.2d 415 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). It claims that even where the purpose of the new rule is to improve the "integrity of the factfinding process," the rule has been held nonretroactive when the impact of the new rule on the administration of justice would otherwise be devastating and when the States have justifiably relied on the old rule. See, e. g., Stovall v. Denno, supra (holding nonretroactive the requirement of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), that counsel be present at a pretrial lineup); Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972) (holding nonretroactive the rule of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), that counsel be present at a preliminary hearing).
24
(5, 6) The force of Ivan V. may not be avoided so easily. It is true that we have said that the question of whether the purpose of a new constitutional rule is to enhance the integrity of the factfinding process is a question of "degree," Johnson v. New Jersey, supra, 384 U.S., at 729, 86 S.Ct. at 1778; and when the degree to which the rule enhances the integrity of the factfinding process is sufficiently small, we have looked to questions of reliance by the State on the old rule and the impact of the new rule on the administration of justice in deciding whether the new rule is to be applied retroactively. Stovall v. Denno, supra; Adams v. Illinois, supra; DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). But we have never deviated from the rule stated in Ivan V. that " '(w)here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule (is) given complete retroactive effect.' " 407 U.S., at 204, 92 S.Ct., at 1952 (emphasis added). The reasonable-doubt standard of proof is as "substantial"7 a requirement under Mullaney as it was in Winship. Respondent's attempt to distinguish Ivan V. is without merit.8
III
25
(7, 8) Respondent next argues in support of the judgment below that the instruction in this case that the defendant must "satisfy" the jury that he acted in self-defense is the equivalent of an instruction that the jury should acquit if it entertains a reasonable doubt on the subject, or is so nearly the equivalent of such an instruction that it is not in violation of the rule announced in Mullaney, where the burden impermissibly placed on the defendant was to persuade the jury by a preponderance of the evidence. Respondent's argument is squarely contrary to the construction given by the North Carolina Supreme Court to the jury charge in this case. That court concluded that a burden to "satisfy" the jury of self-defense places a burden on a defendant "no greater and at the same time one not significantly less than persuasion by a preponderance of the evidence." 288 N.C., at 648, 220 S.E.2d, at 587. The Court has no basis for disagreeing with this interpretation of the charge, which is essentially a question of state law. Since the issue of whether due process requires the prosecution to disprove self-defense beyond a reasonable doubt under North Carolina law was not raised by either party in this case, we decline to consider it now.
26
Reversed.
27
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
28
Mr. Justice BLACKMUN, with whom the Chief Justice joins, concurring.
29
I join the opinion of the Court. I wish to emphasize, however, that our decision not to consider the correctness of the North Carolina Supreme Court's ruling on the self-defense charge, see ante, at 240 n. 6, and this page, does not in any way preclude that court from re-examining its holding in petitioner's case on remand, in light of today's decision in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281.
30
Mr. Justice MARSHALL, concurring in the judgment.
31
In Williams v. United States, 401 U.S. 646, 665, 91 S.Ct. 1148, 1159, 28 L.Ed.2d 388 (1971), I expressed the view that "a decision of this Court construing the Constitution should be applied retroactively to all cases involving criminal convictions not yet final at the time our decision is rendered." For reasons persuasively stated at that time by Mr. Justice Harlan, Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 1164, 28 L.Ed.2d 404 (1971), I concluded that "cases still on direct review should receive full benefit of our supervening constitutional decisions." Williams v. United States, supra, 401 U.S., at 665, 91 S.Ct., at 1159. The Court's more recent struggles with the problem of retroactivity, see, e. g., Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973), have done little to diminish "the inevitable costs and anomalies of the Court's current approach." Williams v. United States, supra, 401 U.S., at 666, 91 S.Ct. at 1159. See Adams v. Illinois, supra, 405 U.S., at 286, 92 S.Ct., at 921 (Douglas, J., dissenting); Michigan v. Payne, supra, 412 U.S., at 59, 93 S.Ct., at 1973 (Marshall, J., dissenting). I remain committed to the approach outlined in my opinion in Williams.* Since this case is here on direct review, I concur in the Court's holding that the rule announced in Mullaney v. Wilbur, 421 U.S. 684, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1975), must be applied.
32
I would add, in view of Mr. Justice BLACKMUN's concurring statement, ante, at 245, that irrespective of the applicability of Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281, the North Carolina Supreme Court remains free to construe its own State Constitution to give individuals the same protection that it afforded them in its original decision in this case. See Manson v. Brathwaite, 432 U.S. 98, 128-129, and n. 9, 97 S.Ct. 2243, 2260, 53 L.Ed.2d 140 (Marshall, J., dissenting); United States v. Washington, 431 U.S. 181, 193-194, 97 S.Ct. 1814, 1821-1822, 52 L.Ed.2d 238 (1977) (Brennan, J., dissenting); Oregon v. Mathiason, 429 U.S. 492, 499, and n. 6, 97 S.Ct. 711, 716, and n. 6, 52 L.Ed.2d 714 and n. 6 (1977) (Marshall, J., dissenting).
33
Mr. Justice POWELL, concurring in the judgment.
34
Twelve years ago this Court decided Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). In the intervening years, we have struggled with the question of retroactivity when new constitutional rules affecting the administration of the criminal law have been adopted. See Beytagh, Ten Years of Non-Retroactivity: A Critique and a Proposal, 61 Va.L.Rev. 1557, 1558-1596 (1975). The retroactivity doctrine that has emerged is far from satisfactory. Although on several occasions I have joined in its application, I am now persuaded that it would be wiser to adopt the view urged by Mr. Justice Harlan in Mackey v. United States, 401 U.S. 667, 675-702, 91 S.Ct. 1160, 1171-1185, 28 L.Ed.2d 404 (1971) (separate opinion). See also Desist v. United States, 394 U.S. 244, 256-269, 89 S.Ct. 1030, 1037-1044, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting); Williams v. United States, 401 U.S. 646, 665-666, 91 S.Ct. 1148, 1158-1159, 28 L.Ed.2d 388 (1971) (Marshall, J., concurring in part and dissenting in part).
35
When the Court declines to hold a new constitutional rule retroactive, one chance beneficiary the lucky individual whose case was chosen as the occasion for announcing the new principle enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine. This hardly comports with the ideal of "administration of justice with an even hand." Desist v. United States, supra, at 255 (Douglas, J., dissenting).1
36
On the other hand, the holding that a new constitutional principle is fully retroactive also may result in serious costs. Convictions long regarded as final must be reconsidered on collateral attack; frequently they must be overturned for reasons unrelated to the guilt or innocence of the prisoner, and in spite of good-faith adherence on the part of police, prosecutors, and courts to what they understood to be acceptable procedures. Society suffers either the burden on judicial and prosecutorial resources entailed in retrial or the miscarriage of justice that occurs when a guilty offender is set free only because effective retrial is impossible years after the offense. Reopening a case also carries disadvantages for those who have been convicted:
37
"Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community." Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct. 1068, 1082, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting).
38
See Schneckloth v. Bustamonte, 412 U.S. 218, 262, 93 S.Ct. 2041, 2065, 36 L.Ed.2d 854 (1973) (Powell, J., concurring).
39
A different approach to the retroactivity question is available. Described in detail in Mr. Justice Harlan's separate opinion in Mackey, supra, it contemplates, in rough outline, that courts apply a new rule retroactively in cases still pending on direct review, whereas cases on collateral review ordinarily would be considered in light of the rule as it stood when the conviction became final.2 Mr. Justice Harlan marshaled compellingly the reasoning supporting this view, 401 U.S., at 675-698, 91 S.Ct. at 1164, and for me to repeat the arguments here would be pointless. I note simply that this approach is closer to the ideal of principled, evenhanded judicial review than is the traditional retroactivity doctrine. At the same time it is more attuned to the historical limitations on habeas corpus, see Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), and to the importance of finality in a rational system of justice. See Blackledge v. Allison, 431 U.S. 63, 83, 97 S.Ct. 1621, 1634, 52 L.Ed.2d 136 (1977) (Powell, J., concurring).
40
The case before us is here on direct review. I therefore agree with the Court that Hankerson is entitled to retroactive application of the Mullaney rule. Accordingly, I concur in the judgment.
1
The second requirement defined by the trial court was that the shooting was the proximate cause of death.
2
"And in order to excuse his act altogether on the grounds of self-defense . . . ." App. 10 (emphasis added). Cf. Id., at 11, 14-15.
3
There was a similar instruction on the defendant's burden to satisfy the jury that he acted without malice, that is, that he acted in the heat of passion on sudden provocation. This instruction was challenged in the North Carolina Supreme Court, along with the instruction on self-defense; but we do not reach the question because the state court, although ruling on it as a matter of its own convenience, held that the issue had not been "properly presented" to it in the absence of any evidence that the killing was in the heat of passion on sudden provocation. 288 N.C. 632, 648, 220 S.E.2d 575-587 (1975). Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed. 508 (1975), does not forbid States from requiring the criminal defendant to present at least some evidence to raise a factual issue with respect to heat of passion or self-defense.
4
"I want to instruct you that to excuse this killing entirely on the grounds of self-defense the defendant must satisfy you of four things: first, that it appeared to the defendant and he believed it to be necessary to shoot Gregory Ashe in order to save himself from death or great bodily harm. The defendant testified that at the time he shot Gregory Ashe or shot at Gregory Ashe that Gregory Ashe was holding a knife at his throat and had his arm around him, and he contends that that should satisfy you that he believed it was necessary to shoot him in order to save himself from death or great bodily harm. The second thing that you must be satisfied of excuse me that the defendant must satisfy you of is this, that the circumstances as they appeared to him at the time were sufficient to create such belief in the mind of a person of ordinary firmness, and it is for you, the jury, to determine the reasonableness of the defendant's belief from the circumstances as they appeared to him at the time. In making this determination you should consider the circumstances as you find them to have existed from the evidence, including the size, age and strength of the defendant as compared to Gregory Ashe, the fierceness of the assault, if any, upon the defendant, whether or not Gregory Ashe had a weapon in his possession. And the third thing the defendant must satisfy you of is that he was not the aggressor. If he voluntarily and without provocation entered into a fight with Gregory Ashe, he was the aggressor, unless he thereafter attempted to abandon the fight and gave notice to Gregory Ashe that he was doing so. One enters a fight voluntarily if he uses towards his opponent abusive language which considering all the circumstances is calculated and intended to bring on a fight. And the fourth thing that the defendant must satisfy you of is that he did not use excessive force, that is, more force than reasonably appeared to be necessary to the defendant at the time." App. 11-12. (Emphasis added.)
5
Mullaney was decided on June 9, 1975. Hankerson's trial was on November 21, 1974.
6
The State as respondent may make any argument presented below that supports the judgment of the lower court. Massachusetts Mutual Ins. Co. v. Ludwig, 426 U.S. 479, 96 S.Ct. 2159, 48 L.Ed.2d 784 (1976). The State does not argue, as an alternative ground in support of the judgment below, that despite Mullaney v. Wilbur, it is constitutionally permissible for a State to treat self-defense as an affirmative defense that the prosecution need not negative by proof beyond a reasonable doubt. Therefore, we do not address that issue in this case. The Court has said: "We do not reach for constitutional questions not raised by the parties. The fact that the issue was mentioned in argument does not bring the question properly before us." Mazer v. Stein, 347 U.S. 201, 206 n. 5, 74 S.Ct. 460, 464, 98 L.Ed. 630 (1954) (citations omitted). See generally R. Stern & E. Gressman, Supreme Court Practice, § 6.37 (4th ed. 1969) and cases there cited.
7
Respondent also argues that the results in very few trials in North Carolina would have been altered by a change in the jury instructions on self-defense because juries do not understand the confusing instructions that were given in this and like cases in the past. Winship is said to be distinguishable because the factfinding in juvenile cases is performed by a judge. We do not so readily assume that juries fail to understand the instructions they have been receiving in North Carolina. See In re Winship, 397 U.S. 358, 369-370, 90 S.Ct. 1068, 1070, 32 L.Ed.2d 659 (1970) (Harlan, J., concurring).
8
Moreover, we are not persuaded that the impact on the administration of justice in those States that utilize the sort of burden-shifting presumptions involved in this case will be as devastating as respondent asserts. If the validity of such burden-shifting presumptions were as well settled in the States that have them as respondent asserts, then it is unlikely that prior to Mullaney many defense lawyers made appropriate objections to jury instructions incorporating those presumptions. Petitioner made none here. The North Carolina Supreme Court passed on the validity of the instructions anyway. The States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error. See, e. g., Fed.Rule Crim.Proc. 30.
*
As I noted in Williams, I think there are persuasive reasons to use the Court's traditional retroactivity analysis to decide that issue in cases arising on habeas corpus or other collateral-review proceedings. 401 U.S., at 666, 91 S.Ct. at 1159.
1
In addition, as Mr. Justice Harlan noted, the typical nonretroactivity decision often places the Court in the role of a legislature rather than that of a judicial tribunal. Mackey v. United States, 401 U.S., at 677-681, 91 S.Ct., at 1172-1174.
2
Mr. Justice Harlan described two exceptions under which a new rule occasionally would be applied retroactively even on collateral review. Id., at 692-695, 91 S.Ct. at 1179-1181. The case he makes for these exceptions is persuasive, but I save for another day when the question is squarely presented a decision on when such exceptions are appropriate. See also Williams v. United States, 401 U.S., at 666, 91 S.Ct. at 1161 (Marshall, J., concurring in part and dissenting in part).
| 01
|
432 U.S. 312
97 S.Ct. 2307
53 L.Ed.2d 368
THIRD NATIONAL BANK IN NASHVILLE, Petitioner,v.IMPAC LIMITED, INC., et al.
No. 76-674.
Argued April 26, 1977.
Decided June 17, 1977.
Syllabus
Title 12 U.S.C. § 91, which prohibits an "attachment, injunction, or execution" from being issued against a national bank or its property before final judgment in any state or local court, held, when read in context, merely to prevent prejudgment seizure of bank property by creditors and not to apply to a mortgagor-debtor's action seeking a preliminary injunction to protect its real property from wrongful foreclosure. The legislative history indicates that when the statute was originally enacted in 1873 it was aimed at preventing preferences by creditors. In the provision itself, the word "injunction" is sandwiched in between the words "attachment" and "execution," both of which are writs used by creditors to seize bank property, strongly implying that Congress intended only to prevent state judicial action, prior to final judgment, which would have the effect of seizing the bank's property. Moreover, no reason has been given for assuming that Congress intended to give national banks engaged in making real estate mortgage loans a privilege not available to competing lenders, it being especially unlikely that Congress intended to give national banks a license to inflict irreparable injury on others, free from the normal constraints of equitable relief. Pp. 318-324.
541 S.W.2d 139, affirmed.
Thomas P. Kanaday, Jr., Nashville, Tenn., for petitioner.
Gail P. Pigg, Nashville, Tenn., for respondents.
Mr. Justice STEVENS delivered the opinion of the Court.
1
A federal statute enacted in 1873 provides that certain prejudgment writs shall not be issued against national banks by state courts.1 The question presented by this case is whether that prohibition applies to a preliminary injunction restraining a national bank from holding a private foreclosure sale, pending adjudication of the mortgagor's claim that the loan is not in default. We conclude that the prohibition does not apply.
2
* Only the essentials of the rather complex three-party transaction giving rise to this dispute need be stated. Respondents borrowed $700,000 from petitioner, a national bank, to finance the construction of an office building. The third party, a mortgage company, agreed to provide permanent financing to replace the bank loan upon completion of the building. The loan was secured by a deed of trust, which granted a first lien on respondents' property to the bank while the construction loan was outstanding. A dispute developed between respondents and the long-term lender over whether respondents had satisfied certain preconditions of the long-term loan. Petitioner contends that respondents are in default because of their failure to close the long-term loan. Respondents deny that they are in default and contend that petitioner's remedy is against the long-term lender. On September 4, 1975, petitioner notified respondents that foreclosure proceedings would be commenced unless the loan, plus accrued interest and an extension fee, was paid in full in 10 days.
3
On September 23, 1975, petitioner published a notice of foreclosure. Under Tennessee practice, foreclosure of a deed of trust is not a judicial proceeding, but is routinely consummated by private sale unless restrained by judicial action initiated by the mortgagor. On September 26, 1975, respondents commenced this litigation by filing a sworn complaint in the Chancery Court of Davidson County, Tenn., seeking to restrain the foreclosure on the ground that the loan was not in default. The chancellor ordered the petitioner to show cause why an injunction should not issue.
4
Petitioner's answer set forth the basis for its claim of default, but did not question the court's power to restrain the foreclosure. Based on the pleadings, the exhibits, and extensive arguments of counsel, the chancellor found "the existence of issues which should be determined upon a full hearing of this cause and that (respondents) would suffer irreparable harm if the foreclosure occurred prior to such full hearing." App. 56. He therefore temporarily enjoined the foreclosure.
5
Two days later, petitioner filed a supplemental answer alleging that the state court lacked jurisdiction to enter a temporary injunction against a national bank. In due course, the chancellor concluded that 12 U.S.C. § 91 removed his jurisdiction to grant an injunction "prohibiting the foreclosure of property in which the bank has a security interest." App. 69. He therefore dissolved the preliminary injunction, granted an interlocutory appeal, and "stayed" the bank from foreclosure until the appeal to the Tennessee Supreme Court could be perfected.
6
The Tennessee Supreme Court reversed. 541 S.W.2d 139 (1976). It concluded that the federal statute was intended "to secure the assets of a bank, whether solvent or insolvent, for ratable distribution among its general creditors and to protect national banks in general." Id., at 141. It did not believe this purpose justified an application of the statute when "a debtor of a national bank is seeking, by interlocutory injunction, to protect his property from wrongful seizure and foreclosure sale by the bank." Ibid. The court acknowledged that the bank had a security interest in respondents' property, but did not believe that the statute was intended to give additional protection to an interest of that kind which was already amply protected.2 One member of the court read the statute as absolutely forbidding the issuance of any temporary injunction against the national bank before judgment, and therefore reluctantly dissented from what he described as the majority's "just result." Id., at 143. We granted certiorari to decide whether the Tennessee Supreme Court's construction of the statute is consistent with the congressional mandate. 429 U.S. 1037, 97 S.Ct. 731, 50 L.Ed.2d 748. We affirm.
7
The critical statutory language reads as follows:
8
"(N)o attachment, injunction, or execution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court." 12 U.S.C. § 91.
9
At least three different interpretations might be placed on that language. Most narrowly, because the rest of § 91 relates to insolvency, this language might be limited to cases in which a national bank is insolvent, or at least on the verge of insolvency. Secondly, regardless of the bank's financial circumstances, it might be construed to prohibit any prejudgment seizure of bank assets. Most broadly, it might be given a completely literal reading and applied not merely as a shield for the bank's assets but also as a prohibition against prejudgment orders protecting the assets of third parties, including debtors of the bank.
10
Although there is support for the narrowest reading in the history of the statute, both that reading and the broadest literal reading have been rejected by this Court's prior cases. Before discussing those cases, we shall review the available information about the origin and revisions of the statute.
II
11
The National Currency Act of 1864 authorized the formation of national banks.3 Section 52 of that Act contained the first part of what is now 12 U.S.C. § 91. It prohibited any transfer of bank assets in contemplation of insolvency or with a view to preferring one creditor of the bank over another. The 1864 statute did not, however, include the prohibition against the issuance of prejudgment writs now found in 12 U.S.C. § 91.
12
That prohibition was enacted in 1873 as § 2 of "An Act to require national Banks to restore their Capital when impaired, and to amend the National-currency Act." 17 Stat. 603. If the prohibition had been added to § 52 of the 1864 Act,4 the amended section would have been virtually identical with the present 12 U.S.C. § 91. It was, however, added to § 57 of the 1864 Act, which authorized suits against national banks in the state courts. Petitioner therefore infers that the amendment was intended to qualify the jurisdiction of state courts over national banks and that the amendment should be given its full, literal meaning.
13
There is no direct evidence of the reason for the amendment. It was passed without debate, Cong. Globe, 42d Cong., 3d Sess., 870, 2117-2118 (1873), and does not seem to have been recommended by the administration.5 However, the historical context in which the bill was passed may offer some clue as to its purpose. We may take judicial notice of the historical fact that 1873 was the year of a financial panic. Moreover, a number of reported cases involved attachments against national banks and attempts by creditors to obtain a preference by attaching assets of an insolvent bank.6
14
When the first edition of the Revised Statutes of the United States was prepared in 1873, the prohibition against prejudgment writs was combined with the provision concerning preferential transfers and acts in contemplation of insolvency to form § 5242, which is now 12 U.S.C. § 91.7 Respondents argue that this revision placed the provision in the context which was originally intended.
15
For the past century the prohibition against prejudgment writs has remained in the preferential-transfer section.
III
16
This Court has construed this prohibition only three times.8 In two cases, the Court held that assets of a national bank could not be attached; in the third, the Court held that property of a third party in the custody of the bank was subject to attachment by a creditor. None of the three involved a preliminary injunction.
17
Petitioner contends that the earliest of the three, Pacific National Bank v. Mixter, 124 U.S. 721, 8 S.Ct. 718, 31 L.Ed. 567, "squarely controls" this case. Brief for Petitioner 13. Actually, however, the holding in Mixter was quite narrow. The question before the Court was "whether an attachment can issue against a national bank before judgment in a suit begun in the Circuit Court of the United States," Pacific National Bank v. Mixter, 124 U.S., at 724, 8 S.Ct., at 719. Although the statutory prohibition was not directly applicable to federal suits, the federal courts were authorized to issue attachments only as provided by state law. The Court concluded:
18
"In our opinion the effect of the act of Congress is to deny the state remedy altogether so far as suits against national banks are concerned, and in this way operates as well on the courts of the United States as on those of the States. Although the provision was evidently made to secure equality among the general creditors in the division of the proceeds of the property of an insolvent bank, its operation is by no means confined to cases of actual or contemplated insolvency. The remedy is taken away altogether and cannot be used under any circumstances." Id., at 727, 8 S.Ct., at 721.9
19
(1) The statement in Mixter that the remedy of attachment cannot be used against a national bank "under any circumstances" makes it clear that the statutory prohibition is applicable to solvent as well as insolvent national banks. The financial circumstances of the bank are not of controlling importance. That Mixter did so hold was settled by this Court's most recent decision concerning this statute, Van Reed v. People's National Bank of Lebanon, 198 U.S. 554, 25 S.Ct. 775, 49 L.Ed. 1161:
20
"Since the rendition of that decision (Mixter )it has been generally followed as an authoritative construction of the statute holding that no attachment can issue from a state court before judgment against a national bank or its property. It is argued by the plaintiff in error that the decision in the Mixter case, supra, should be limited to cases where the bank is insolvent; but the statement of facts in that case shows that at the time when the attachment was issued the bank was a going concern and entirely solvent so far as the record discloses. The language of Chief Justice Waite, above quoted, is broad and applicable to all conditions of national banks, whether solvent or insolvent; and there is nothing in the statute, which is likewise specific in its terms, giving the right of foreign attachment as against solvent national banks." Id., at 559, 25 S.Ct., at 777 (citations omitted).
21
Between Mixter and Van Reed, this Court rendered its only other decision in this area, Earle v. Pennsylvania, 178 U.S. 449, 20 S.Ct. 915, 44 L.Ed. 1146. In that case, the Court held that an "attachment sued out against (a) bank as garnishee is not an attachment against the bank or its property, nor a suit against it, within the meaning of that section." Id., at 454, 20 S.Ct., at 917 (emphasis omitted). The holding in Earle forecloses a completely literal reading of the statute.10 It also demonstrates that the "under any circumstances" language in Mixter had reference to the financial condition of the bank, rather than to any possible case in which a prejudgment writ issues against a national bank.
22
(2) Speaking for the Court in Earle, the first Mr. Justice Harlan stated that the ban on prejudgment writs must "be construed in connection with the previous parts of the same section" concerning preferential transfers. 178 U.S., at 453, 20 S.Ct., at 917. This statement was consistent with the Court's earlier comment in Mixter :
23
"The fact that the amendment of 1873 in relation to attachments and injunctions in state courts was made a part of § 5242 shows the opinion of the revisers and of Congress that it was germane to the other provision incorporated in that section (concerning preferential transfers), and was intended as an aid to the enforcement of the principle of equality among the creditors of an insolvent bank." 124 U.S., at 726, 8 S.Ct., at 720.11
24
Thus, the statute can be given its full intended effect if it is applied to actions by creditors of the bank. As always, "(t)he meaning of particular phrases must be determined in context";12 read in context, the anti-injunction provision has only a limited scope.13
25
Petitioner argues, however, that the Court erred in Earle by reading the anti-attachment and preferential-transfer provisions together. It contends that the two were simply combined by mistake in the Revised Statutes. The burden is on petitioner, we think, to show that the present form of the statute which, after all, constitutes the legal command of Congress does not reflect congressional intent. If any mistake occurred, it seems at least as likely that the 1873 amendment was incorrectly added to § 57 as that the revisers, that very year, made an error which has gone undetected for over a century.14 But there are three stronger reasons for rejecting the argument.
26
(3) First, the historical evidence supports the revisers. It appears likely that when originally passed the provision barring prejudgment writs actually was aimed at preventing preferences by creditors. As noted earlier, the threat of insolvency was a serious national problem in 1873, and there had been a number of cases just before in which state courts had allowed creditors to obtain preferences in this manner. There does not seem to have been any similar problem with actions by noncreditors. It seems improbable, for instance, that there were many actions by mortgagors to enjoin foreclosures by national banks, because at that time national banks were allowed to accept mortgages only in very limited circumstances.15
27
(4) Second, the anti-injunction provision itself bears strong signs that it was meant to have a limited scope. It is a familiar principle of statutory construction that words grouped in a list should be given related meaning.16 The word "injunction" is sandwiched in between the words "attachment" and "execution." Both are writs used by creditors to seize bank property. On the other hand, the word "garnishment" is conspicuously absent from the list.17 That writ is directed at the bank, but is used to seize property belonging to others which happens to be in the hands of the bank. The implication is strong that Congress intended only to prevent state judicial action, prior to final judgment, which would have the effect of seizing the bank's property.18
28
Third, petitioner completely fails to identify any national or local interests which its reading of the statute would serve. That reading would give national banks engaged in the business of making loans secured by mortgages on real estate a privilege unavailable to competing lenders. No reason has been advanced for assuming that Congress intended such disparate treatment. We cannot believe that Congress intended to give national banks a license to inflict irreparable injury on others, free from the normal constraints of equitable relief. It is true that Congress has consistently and effectively sought to minimize the risk of insolvency for national banks, and to protect bank creditors from disparate treatment. But those interests are fully vindicated by our construction of the Act.
29
Even though petitioner's reading of the Act can be supported by its text and by fragments of history, accepted principles of construction require that the provision in question be construed in its present context and given a rational reading. Fairly read, the statute merely prevents prejudgment seizure of bank property by creditors of the bank. It does not apply to an action by a debtor seeking a preliminary injunction to protect its own property from wrongful foreclosure.
30
The judgment of the Supreme Court of Tennessee is affirmed.
31
It is so ordered.
32
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice WHITE join, dissenting.
33
I fear that the Court in this case is driven by sentimentality to reach for what it perceives to be a "just result." In so doing, in my view, it invades the domain of Congress.
34
The statute provides in unambiguous terms that "no attachment, injunction, or execution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court." 12 U.S.C. § 91. The Court today holds that the statute does not mean what it says: Debtors of a national bank may now obtain injunctions in a state court before final judgment. Perhaps the Court holds, as well, that the statute should apply only to protect banks that are insolvent or nearly so. See ante, at 317, 322. But see ante, at 315-316, 319, 321. Since the Court rides roughshod over the language of the statute, the legislative history, and a century of consistent interpretation by this Court and others, I cannot join either the Court's opinion or its judgment.
35
* At its core, the opinion for the Court rests on a postulated connection between the provision barring prejudgment state writs and certain preceding language of § 91 relating to preferential transfers and acts in contemplation of bankruptcy. From the supposed connection, the Court justifies its construction that the provision imposes a bar only on the creditors of the bank. Also from this postulated linkage flows the Court's somewhat ambiguous suggestion one explicitly repudiated in the decided cases that the statute is limited to the context of bank insolvency. The legislative history, however, is clear that the presence of the provision in a section dealing otherwise with bank insolvency is the result of the revisers' accident. No limitation such as the Court today constructs was ever intended by Congress, or, indeed, has ever before been imposed.
36
The provision at issue was originally enacted in 1873 as an amendment to § 57 of the National Currency Act of 1864. Section 57 originally read:
37
"And be it further enacted, That suits, actions, and proceedings, against any association under this act, may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established; or in any state, county, or municipal court in the county or city in which said association is located, having jurisdiction in similar cases: Provided, however, That all proceedings to enjoin the comptroller under this act shall be had in a circuit, district, or territorial court of the United States, held in the district in which the association is located." 13 Stat. 116.
38
And the 1873 amendment to this section provided:
39
"That section fifty-seven of said act be amended by adding thereto the following: 'And provided further, That no attachment, injunction, or execution shall be issued against such association, or its property, before final judgment in any such suit, action, or proceeding in any State, county, or municipal court.' " Act of Mar. 3, 1873, § 2, 17 Stat. 603.
40
Thus, as originally enacted by the Congress, the provision had no connection whatsoever with the insolvency of national banks. It was sweeping in scope, barring all writs before final judgment in a state court. It is obvious that the statute in its original 1873 form would require reversal of the decision reviewed today.
41
As it happened, the amendment of 1873 was separated from the remainder of § 57 in a subsequent compilation of the federal statutes. At the hands of the revisers, the provision barring prejudgment writs found its current resting place as an addendum to what had been § 52 of the National Currency Act of 1864, a section dealing with preferential transfers. Rev.Stat. § 5242 (1874). The Court seizes upon the revisers' accidental reconstruction to limit the amendment's scope. It justifies its action by suggesting that Congress really intended to amend § 52 rather than § 57. The Court states: "If any mistake occurred, it seems at least as likely that the 1873 amendment was incorrectly added to § 57 as that the revisers, that very year, made an error which has gone undetected for over a century." Ante, at 321-322. Thus, the Court by sleight-of-hand transforms a simple clerical error into an error made by Congress in the original placement of the amendment. This attempt to refashion the legislative history will not stand scrutiny.
42
First, although Congress in 1873 could have amended either § 57 or § 52, there is ample internal evidence that the addition of the amendment of § 57 reflects its considered choice. There can be no question, as the Court seems to acknowledge, ante, at 322 n. 14, that the reference to § 57 in the 1873 amendment was not a typographical error. The amendment was in "And provided further" form; § 57, unlike § 52 of the 1864 statute, already contained one proviso and so the use of "further" was grammatically proper only with respect to § 57. And the broad reading that is compelled by the language of the amendment attaches logically to the other provisions of § 57. The body of § 57 established venue "in any state, county, or municipal court . . . in which said association is located," and it was natural to place in the very same section any limitation on the power of those courts. Section 57 also contained a limitation on injunctions directed at the Comptroller of the Currency, and it therefore also was natural to place an amendment imposing a related restriction in the same section. In short, there is nothing to suggest that the amendment was placed by Congress in an unintended context.
43
Second, the Court's confidence in the reliability of the compilation is misplaced. It is hard to believe that the revisers, faced with the task of compiling for the first time the mass of congressional legislation from 1789 to 1873, could have performed the delicate task of determining what Congress "really" intended in adopting the 1873 amendment and of "correcting" its error. It is far more likely that the revisers' "placement" of the provision governing prejudgment writs was just one of the many errors that marred the first compilation. See M. Price & H. Bitner, Effective Legal Research 29 (3d ed. 1969); Dwan & Feidler, The Federal Statutes Their History and Use, 22 Minn.L.Rev. 1008, 1014 (1938). Indeed the portion of § 57 dealing with venue in state courts was totally omitted in the first edition of the Revised Statutes and was rescued by inclusion in the second edition at the end of a section dealing with usurious interest rates. Act of Feb. 18, 1875, 18 Stat. 320; Rev.Stat. § 5198 (1878). Just as the Court would not, and has not construed the venue provision established in § 57 as limited to cases involving usurious interest rates,1 so, too, it should not in good conscience construe the amendment to § 57 as limited to cases involving bank insolvency and preferential transfers.
II
44
If any doubts remain as to the intended scope of the provision, they should be settled by a century of consistent interpretation by this Court and other courts. The Court first construed the statute in 1888 in Pacific National Bank v. Mixter, 124 U.S. 721, 8 S.Ct. 718, 31 L.Ed. 567. The Court quotes the following sentence from that opinion, ante, at 320-321:
45
"The fact that the amendment of 1873 in relation to attachments and injunctions in state courts was made a part of § 5242 shows the opinion of the revisers and of Congress that it was germane to the other provision incorporated in that section, and was intended as an aid to the enforcement of the principle of equality among the creditors of an insolvent bank." 124 U.S., at 726, 8 S.Ct., at 720.
46
Since the Court confines its quotation to this solitary sentence, it is able to draw from Mixter the proposition that "the statute can be given its full intended effect if it is applied to actions by creditors of the bank." Ante, at 321. In its original context, however, the sentence was intended to explain how it happened that the revisers misplaced the amendment and that Congress acquiesced. The sentences immediately following the Court's carefully selected single-sentence quotation are:
47
"But however that may be, it is clear to our minds that, as it stood originally as part of § 57 after 1873, and as it stands now in the Revised Statutes, it operates as a prohibition upon all attachments against national banks under the authority of the state courts. That was evidently its purpose when first enacted, for then it was part of a section which, while providing for suits in the courts of the United States or of the State, as the plaintiff might elect, declared in express terms that if the suit was begun in a state court no attachment should issue until after judgment. The form of its reenactment in the Revised Statutes does not change its meaning in this particular. It stands now, as it did originally, as the paramount law of the land that attachments shall not issue from state courts against national banks, and writes into all state attachment laws an exception in favor of national banks. Since the act of 1873 all the attachment laws of the State must be read as if they contained a provision in express terms that they were not to apply to suits against a national bank." 124 U.S., at 726, 8 S.Ct., at 721.
48
As this passage conclusively demonstrates, Mixter hardly provides the support the Court attempts to derive from it. And the revisers' error, far from remaining "undetected for over a century," as the Court states, ante, at 322, was exposed and overcome in the very first case in which the Court examined the statutory provision. The Mixter court gave the provision the broad scope that Congress intended.
49
The Court next considered the statute in Earle v. Pennsylvania, 178 U.S. 449, 20 S.Ct. 915, 44 L.Ed. 1146 (1900). A national bank was holding a deposit of a customer who happened to be a defendant in an action that otherwise had no connection with the bank. The Court allowed the plaintiff in the action against the defendant-customer to attach the deposit, but only because "an attachment sued out against the bank as garnishee is not an attachment against the bank or its property, nor a suit against it, within the meaning of (§ 5242)." Id., at 454, 20 S.Ct., at 917. The bank itself had no interest in the fund, and it was immaterial to it whether the deposit was considered the property of the plaintiff or of the defendant. The attachment thus was allowed because the bank was merely a stakeholder. Earle offers no suggestion of a distinction between debtors and creditors. In fact, the Court dissolved that portion of the attachment that ordered the sale, subject to the bank's interest, of certain securities the defendant had pledged to the bank as collateral for a loan. Id., at 455, 20 S.Ct., at 917. It is apparent that, unlike the deposit, the bank had an interest in the collateral.
50
The most recent case, Van Reed v. People's National Bank, 198 U.S. 554, 25 S.Ct. 775, 49 L.Ed. 1161 (1905), is consistent with this unbroken theme. The Court quoted extensively from Mixter, and summarized that case's "authoritative construction of the statute" in simple and unambiguous terms: "(N)o attachment can issue from a state court before judgment against a national bank or its property." 198 U.S., at 559, 25 S.Ct., at 777. The Court specifically held, in vivid contrast to the intimations of the Court's opinion today, that the provision was not limited to cases in which the solvency of the bank was threatened. Ibid.
51
Not surprisingly, in light of the consistent and expansive interpretation of the statutory provision established by this Court's cases, decisions of other courts are also consistent; they hold with near unanimity that all prejudgment writs issued by state courts and directed at the property of national banks cannot stand. See, e. g., Robinson v. First Nat. Bank of Plainview, 45 F.2d 613 (ND Tex. 1930), aff'd on other grounds, 55 F.2d 209 (CA5 1932); Garner v. Second Nat. Bank, 66 F. 369 (CC SDNY 1895), appeal dismissed, 79 F. 995 (CA2 1896); First Nat. Bank v. Superior Court, 240 Cal.App.2d 109, 49 Cal.Rptr. 358, cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966); National Bank of Savannah v. Craven, 147 Ga. 753, 95 S.E. 246 (1918); Meyer v. First Nat. Bank, 10 Idaho 175, 77 P. 334 (1904); Chesapeake Bank v. First Nat'l Bank, 40 Md. 269 (1874); Freeman Mfg. Co. v. National Bank of the Republic, 160 Mass. 398, 35 N.E. 865 (1894);2 First Nat. Bank v. La Due, 39 Minn. 415, 40 N.W. 367 (1888).
52
In short, in over a century of the application of the statute by this Court and others, no distinction has been drawn between suits by debtors and suits by creditors, and no limitation to bank insolvency has been imposed. And, of course, Congress' continued acquiescence in this interpretation of the statute only reaffirms the correctness of the long-settled construction.
III
53
Even if the legislative history in the cases were less clear, I could not accept the distinction the Court today draws between applications for prejudgment writs by creditors and those by debtors. If the purpose of the provision is to protect the bank's property, no such distinction logically follows. Surely, it must be acknowledged that an injunction interfering with a bank's security interest in mortgaged property is as much an action against its assets as an attachment of its funds or property. And a debtor's injunction directed at a bank's security interest in a building is just as harmful as an attachment of bank property of comparable value by a creditor.3
54
I suspect that the only justification for the Court's decision today is its belief that the statute is unfair in its application. It should be noted in that regard, however, that any unfairness can be traced at least as much to the Tennessee procedure governing foreclosure as to the federal provision barring prejudgment writs in state courts. For if Tennessee law required judicial approval for a foreclosure, any perceived need for the instant preliminary injunction would be eliminated. But even if any unfairness were attributed solely to the federal law, the decision whether to alter the statute remains with the Congress, not with this Court. Since I do not feel free to amend the statute, I respectfully dissent.
1
Title 12 U.S.C. § 91, entitled "Transfers by bank and other acts in contemplation of insolvency," now reads as follows:
"All transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction, or execution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court." (Emphasis added.)
2
"In the instant case, appellee is not using the statute as a shield to protect its assets, but is using it to preclude appellant from protecting its own property. True, appellee has a security interest of $700,000 in the property. However, the property is in the form of an office building allegedly worth in excess of $1,000,000 which cannot be sold, or assigned, or spirited away in the dark of the night so as to defeat appellee's security interest. The Chancellor predicated the temporary injunction (before it was dissolved) upon the condition that appellant continue to pay interest on the $700,000 at the contract rate until a final determination on the merits could be made. In short, appellee's security interest in appellant's property was completely protected." 541 S.W.2d, at 142.
3
13 Stat. 99, 100-101. The full title of the statute was "An Act to provide a National Currency, secured by a Pledge of United States Bonds, and to provide for the Circulation and Redemption thereof," but subsequent amendments refer to it as the "National Currency Act." See 17 Stat. 603. The 1864 statute replaced the National Banking Act of 1863, 12 Stat. 665.
4
The only difference would be that the provision on prejudgment writs would be preceded by the phrase "And provided further, That . . . ."
5
It was not mentioned in the Reports of the Comptroller of the Currency for 1872 or 1873.
6
One, First National Bank of Selma v. Colby, 46 Ala. 435 (1871), later reached this Court, 21 Wall. 609, 22 L.Ed. 687. See n. 8, infra. Colby was typical in that it involved an attempt by creditors to obtain a preference by attaching assets of an insolvent bank. This attempt was successful in the Alabama courts, and similar attempts had met with success in New York. See Allen v. Scandinavian National Bank, 46 How. Pr. 71, 82-83 (Sup.Ct., General Term, 1873); Bowen v. First National Bank of Medina, 34 How. Pr. 408 (Sup.Ct., General Term, 1867). See also Cadle v. Tracy, 4 Fed.Cas. 967, No. 2,279 (S.D.N.Y. 1873). Moreover, Bowen and another case, Cooke v. State National Bank of Boston, 50 Barb. 339 (Sup.Ct., Special Term, 1867), raised the possibility that bank assets would be routinely attached by creditors. These cases allowed attachment on the basis that a national bank, wherever it does business, is by definition a "foreign corporation."
7
Section 5242 was included in c. IV entitled "Dissolution and Receivership." The legislative history is sketched in Pacific National Bank v. Mixter, 124 U.S. 721, 724-726, 8 S.Ct. 718, 719-720, 31 L.Ed. 567.
8
National Bank v. Colby, 21 Wall. 609, 22 L.Ed. 687, was decided after the passage of the 1873 amendment, but the attachment had been issued before the amendment. The Court invalidated the attachment without relying on the amendment. It based its decision, instead, on the ban against preferential transfers and the paramount lien given the United States in the assets of insolvent national banks. Id., at 613-614, 22 L.Ed. 687.
9
The Court then added:
"It was further said that if the power of issuing attachments has been taken away from the state courts, so also is the power of issuing injunctions. That is true. While the law as it stood previous to the act of July 12, 1882, 22 Stat. 163, c. 290, § 4, gave the proper state and federal courts concurrent jurisdiction in all ordinary suits against national banks, it was careful to provide that the jurisdiction of the federal courts should be exclusive when relief by attachment or injunction before judgment was sought." 124 U.S., at 727, 8 S.Ct., at 721.
This was simply dictum, as no injunction was involved in Mixter. Moreover, in Mixter the Court was not presented with a situation in which the requested relief related to assets not belonging to the bank. The Mixter dictum is therefore not controlling now that "the very point is presented for decision." Cohens v. Virginia, 6 Wheat. 264, 399, 5 L.Ed. 257. See generally Barrett v. United States, 423 U.S. 212, 223, 96 S.Ct. 498, 504, 46 L.Ed.2d 450.
10
In support of its literal reading of the statute, petitioner relies heavily on Mr. Justice Holmes' opinion in Freeman Mfg. Co. v. National Bank of the Republic, 160 Mass. 398, 35 N.E. 865 (1894); but that opinion preceded Earle, in which this Court adopted a contrary approach.
11
The Court went on to say that "however that may be," the provision as originally enacted in 1873 completely barred all prejudgment attachments, and "(t)he form of its reenactment in the Revised Statutes does not change its meaning in this particular." 124 U.S., at 726, 8 S.Ct., at 720 (emphasis added). After Earle, this statement must be read to apply only to attachments against the bank's property.
12
SEC v. National Securities, Inc., 393 U.S. 453, 466, 89 S.Ct. 564, 571, 21 L.Ed.2d 668; see also Haggar Co. v. Helvering, 308 U.S. 389, 396, 60 S.Ct. 337, 340, 84 L.Ed. 340.
13
"The statutory policy seems to be to prevent all preference or priority in claims against these banks sought to be acquired by seizure of effects under State authority before the final adjudication of such claims, and to protect the banks from being weakened or crippled by such antecedent seizures. The national banks created by Congress are to control their own assets and resources, as against State interference at the instance of creditors, or of pretended creditors, until the real existence of the alleged debts has been ascertained by final judgment." Planters' Loan & Savings Bank v. Berry, 91 Ga. 264, 265, 18 S.E. 137 (1893).
14
We do not imply that the original reference to § 57 was a typographical error. We merely suggest that the context in which the amendment was originally placed may not have accurately reflected the meaning its draftsmen intended.
15
It was only much later that national banks were allowed to make loans secured by real estate mortgages. See First National Bank v. Anderson, 269 U.S. 341, 353-354, 46 S.Ct. 135, 140, 70 L.Ed. 295. National banks were, however, allowed to accept mortgages as "security for debts previously contracted." 13 Stat. 108.
16
"One hardly need rely on such Latin phrases as ejusdem generis and noscitur a sociis to reach this obvious conclusion." United States v. Feola, 420 U.S. 671, 708, 95 S.Ct. 1255, 1275, 43 L.Ed.2d 541 (Stewart, J., dissenting).
17
Moreover, the provision does not forbid other ways in which a state court might exercise in rem jurisdiction over the property of a debtor of the bank, such as a state receivership involving the debtor. Yet such state-court jurisdiction might prevent any other court from exercising in rem jurisdiction, as in a judicial proceeding by the bank to judicially foreclose its mortgage. See 1A J. Moore Federal Practice P 0.214 (2d ed. 1974).
18
Such uses of injunctions before final judgment were not unknown at the time the statute was passed. For example, creditors were sometimes able to enjoin a transfer of a debtor's property which they alleged to be a fraud on creditors. See Reubens v. Joel, 13 N.Y. 488, 492 (1856) (describing New York statute).
1
Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976); Mercantile National Bank v. Langdeau, 371 U.S. 555, 558-562, 83 S.Ct. 520, 522-524, 9 L.Ed.2d 523 (1963).
2
The Court suggests that Mr. Justice Holmes' opinion in Freeman Mfg. Co. is open to question because it preceded Earle and because Earle purportedly adopted a "contrary approach." Ante, at 320 n. 10. This Court's decision in Van Reed, however, which in turn succeeded Earle, cited Freeman Mfg. Co. with approval as a case that followed the "authoritative construction" of the statute. 198 U.S., at 559, 25 S.Ct., at 777. And as to the "contrary approach" of Earle, I note that the Van Reed Court stated: "We find nothing in the case of Earle v. Pennsylvania, 178 U.S. 449, 20 S.Ct. 915, 44 L.Ed. 1146, which qualifies the decision announced in the Mixter case." 198 U.S., at 559, 25 S.Ct., at 777.
3
Thus the Court's first reason for its construction of the statute, ante, at 322, the protection of national banks from insolvency in fact supports the application of the statute to bar prejudgment state-court writs by both creditors and debtors. The other justifications offered fare no better. The second reason, ante, at 322-323, the failure to include garnishment among the prohibited writs is easily explained by the fact that the seizure of property in which the bank has no interest does not adversely affect it. See Earle v. Pennsylvania, 178 U.S. 449, 454, 20 S.Ct. 915, 917, 44 L.Ed. 1146 (1900). Thus the absence of mention of garnishment hardly justifies a construction that would allow interference with a bank's property by a debtor. The third reason, ante, at 323, the alleged absence of an interest supporting the natural reading of the statute is also easily answered. The statute's obvious purpose of protecting the property of a national bank requires that interference with that property by all, both debtors and creditors, be treated alike.
| 12
|
432 U.S. 282
97 S.Ct. 2290
53 L.Ed.2d 344
Ernest John DOBBERT, Jr., Petitioner,v.State of FLORIDA.
No. 76-5306.
Argued March 28, 1977.
Decided June 17, 1977.
Rehearing Denied Oct. 3, 1977. See 434 U.S. 882, 98 S.Ct. 246.
Syllabus
The Florida death penalty statute, which was upheld in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, requires, upon the conviction of a capital felon, a separate sentencing hearing before the trial judge and jury, at which certain evidence relating to aggravating or mitigating circumstances must be admitted. The jury, based on such circumstances, then renders an advisory decision, not binding on the judge, who must then also weigh the circumstances, and if he imposes a death sentence, he must set forth written findings of fact. The judgment of conviction and death sentence are thereafter subject to an automatic priority review by the Florida Supreme Court. Petitioner was convicted in a Florida court of, inter alia, first-degree murder of one of his children. Pursuant to the above statute the jury, after the required sentencing hearing, recommended a life sentence, but the judge overruled that recommendation and sentenced petitioner to death. The Florida Supreme Court affirmed. Petitioner makes three claims based on the constitutional prohibition against ex post facto laws: (1) the change in the role of the judge and jury in imposing the death sentence, in that under the statute in effect at the time of the murder a recommendation of mercy by the jury was not reviewable by the judge, constituted an ex post facto violation because the change deprived him of a substantial right to have the jury determine, without review by the trial judge, whether the death penalty should be imposed; (2) there was no death penalty "in effect" in Florida at the time of the murder because the earlier statute in effect at such time was later held invalid by the Florida Supreme Court under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346; and (3) the current statute (the one under which he was sentenced) requires anyone sentenced to life imprisonment to serve at least 25 years before becoming eligible for parole, whereas the prior statute contained no such limitation. Petitioner also makes a related claim that since after Furman and its own decision invalidating the prior death penalty statute the Florida Supreme Court resentenced to life imprisonment all prisoners then under death sentences pursuant to the old statute, and since his crimes were committed prior to Furman, the imposition of the death sentence upon him pursuant to the new statute denied him equal protection of the laws. He further claims that pretrial publicity concerning his crimes deprived him of his right to a fair trial. Held:
1. The changes in the death penalty statute between the time of the murder and the time of the trial are procedural and on the whole ameliorative, and hence there is no ex post facto violation. Pp. 293-297.
(a) The new statute simply altered the methods employed in determining whether the death penalty was to be imposed, and there was no change in the quantum of punishment attached to the crime. Pp. 293-294.
(b) The new statute provides capital defendants with more, rather than less, judicial protection than the old statute. Death is not automatic, absent a jury recommendation of mercy, as it was under the old statute; a jury recommendation of life may be overridden by the trial judge only under exacting standards, but, unlike the old statute, a jury recommendation of death is not binding. Defendants have a second chance for life with the trial judge and a third, if necessary, with the Florida Supreme Court. Pp. 294-297.
2. The existence of the earlier statute at the time of the murder served as an "operative fact" to warn petitioner of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder, and this was sufficient compliance with the ex post facto provision of the Constitution, notwithstanding the subsequent invalidation of the statute. Pp. 297-298.
3. Petitioner, having been sentenced to death, may not complain of burdens attached to a life sentence under the new statute which may not have attached to the old. Pp. 298-301.
4. The imposition of the death sentence upon petitioner pursuant to the new statute did not deny him equal protection of the laws. Having been neither tried nor sentenced prior to Furman, he was not similarly situated to those whose death sentences were commuted, and it was not irrational for Florida to relegate him to the class of those prisoners whose acts could properly be punished under the new statute that was in effect at the time of his trial and sentence. P. 301.
5. Absent anything in the record, in particular with respect to the voir dire examination of the jurors, that would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected, petitioner has failed to show that under the "totality of circumstances" extensive pretrial news media coverage of his case denied him a fair trial. Pp. 301-303.
328 So.2d 433, affirmed.
Louis O. Frost, Jr., Jacksonville, Fla., for petitioner.
Charles W. Musgrove, Tallahassee, Fla., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner was convicted of murder in the first degree, murder in the second degree, child abuse, and child torture. The victims were his children. Under the Florida death penalty statute then in effect he was sentenced by the trial judge to death for the first-degree murder. The Florida Supreme Court affirmed, and we granted certiorari to consider whether changes in the Florida death penalty statutes subjected him to trial under an ex post facto law or denied him equal protection of the laws, and whether the significant amount of pretrial publicity concerning the crime deprived petitioner of his right to a fair trial. We conclude that petitioner has not shown the deprivation of any federal constitutional right, and affirm the judgment of the Florida Supreme Court.
2
* Petitioner was convicted of first-degree murder of his daughter Kelly Ann, aged 9, and second-degree murder of his son Ryder Scott, aged 7. He was also found guilty of torturing his son Ernest John III, aged 11, and of abusing his daughter Honore Elizabeth, aged 5. The brutality and heinousness of these crimes are relevant both to petitioner's motion for a change of venue due to pretrial publicity and to the trial judge's imposition of the sentence of death. The trial judge, in his factual findings at the sentencing phase of the trial, summarized petitioner's treatment of his own offspring as follows:
3
"The evidence and testimony showed premeditated and continuous torture, brutality, sadism and unspeakable horrors committed against all of the children over a period of time." App. 47.
4
The judge then detailed some of the horrors inflicted upon young Kelly Ann, upon which he relied to meet the statutory requirement that aggravating circumstances be found:
5
"Over the period of time of the latter portion of Kelly Ann's short, tortu(r) ous life the defendant did these things to her on one or many occasions:
6
"1. Beat her in the head until it was swollen.
7
"2. Burned her hands.
8
"3. Poked his fingers in her eyes.
9
"4. Beat her in the abdomen until 'it was swollen like she was pregnant.'
10
"5. Knocked her against a wall and 'when she fell, kicked her in the lower part of the body.'
11
"6. Held her under water in both the bath tub and toilet.
12
"7. Kicked her against a table which cut her head then defendant sewed up her wound with needle and thread.
13
"8. Scarred her head and body by beating her with a belt and board causing marks from her cheek, across the neck and down her back which injuries worsened without treatment 'until the body juices came out.' "9. On one occasion beat her continuously for 45 minutes.
14
"10. On many occasions kicked her in the stomach with his shoes on, and on the night she died he kicked her a number of times.
15
"11. Kept her out of school so that the many scars, cuts and bruises on her body would not be seen by others.
16
"12. Defendant made no effort to get professional medical care and attention for the child and in fact actively prevented any out-siders from discovering her condition.
17
"13. Choked her on the night she died and when she stopped breathing he placed her body in a plastic garbage bag and buried her in an unmarked and unknown grave." Id., at 47-48.
18
This sordid tale began to unravel in early 1972 when Ernest John III was found battered and wandering in Jacksonville, Fla.1 An arrest warrant was issued for petitioner, who evidently had fled the area. About a year later, Honore Elizabeth was found in a Ft. Lauderdale hospital with a note pinned to her clothing asking that she be sent to her mother in Wisconsin. Shortly thereafter petitioner's abandoned automobile was found near a bridge with a suicide note on the front seat. Petitioner, however, had fled to Texas, where he was eventually arrested and extradited to Florida.
19
Prior to trial, petitioner applied to the Supreme Court of Florida for a Constitutional Stay of Trial,2 alleging the application of an ex post facto law and a violation of equal protection. Id., at 81-86. The application was denied. Petitioner also moved in the lower court for a change of venue, alleging that he was charged with "inherently odious" acts, id., at 17, and that extensive publicity regarding his flight, extradition, and arrest, as well as a search for bodies by the Jacksonville Police Department, had rendered impossible a fair and impartial trial in Duval County. Id., at 17-18. The trial judge took the motion under advisement and issued an order enjoining anyone connected with the trial from releasing any statement about the case to the news media. Id., at 25-26. The motion was later denied.
20
Trial was had and the jury found petitioner guilty of inter alia, murder in the first degree. Pursuant to the Florida death penalty statute then in effect, a sentencing hearing was held before the judge and jury. The jury by a 10-to-2 majority found sufficient mitigating circumstances to outweigh any aggravating circumstances and recommended a sentence of life imprisonment. The trial judge, pursuant to his authority under the amended Florida statute, overruled the jury's recommendation and sentenced petitioner to death. The Florida Supreme Court affirmed over two dissents.
II
21
Petitioner makes three separate claims based on the prohibition against ex post facto laws, and a related claim based upon the Equal Protection Clause of the Fourteenth Amendment. His first ex post facto claim is addressed to the change in the function of judge and jury in the imposition of death sentences in Florida between the time he committed the acts charged and the time he was tried for them. The second ex post facto claim is grounded on his contention that at the time he acted there was no valid death penalty statute in effect in Florida. The third claim relates to the more stringent parole requirements attached to a life sentence under the new law. A discussion of the relevant changes in Florida death-sentencing procedures brings these claims into focus.
22
The murders of which petitioner was convicted were alleged to have occurred on December 31, 1971 (Kelly Ann), and between January 1 and April 8, 1972 (Ryder Scott). During that period of time, Fla.Stat.Ann. §§ 775.082 (1971) and 921.141 (Supp.1971-1972), as then written, provided that a person convicted of a capital felony was to be punished by death unless the verdict included a recommendation of mercy by a majority of the jury.3
23
On June 22, 1972, this Court struck down a Georgia death penalty statute as violative of the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Shortly thereafter, on July 17, 1972, in Donaldson v. Sack, 265 So.2d 499, the Florida Supreme Court found the 1971 Florida death penalty statutes inconsistent with Furman. Late in 1972 Florida enacted a new death penalty procedure, 1973 Fla.Laws, c. 72-724, amending, inter alia, §§ 775.082 and 921.141.4
24
The opinion of Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), in which the constitutionality of this statute was upheld, details at length the operation of the revised § 921.141.5 428 U.S., at 247-251, 96 S.Ct., at 2964-2966. After a defendant is found guilty of a capital felony, a separate sentencing hearing is held before the trial judge and the trial jury. Any evidence that the judge deems relevant to sentencing may be admitted, and certain evidence relating to aggravating or mitigating circumstances must be admitted. The jury, by a majority vote, then renders an advisory decision, not binding on the court, based upon these aggravating and mitigating circumstances. The court must then also weigh the aggravating and mitigating circumstances. If the court imposes a sentence of death, it must set forth written findings of fact regarding the aggravating and mitigating circumstances. A judgment of conviction and sentence of death is then subject to an automatic, priority review by the Florida Supreme Court. It is in the light of these changes that we must adjudge petitioner's ex post facto claims.
25
Petitioner argues that the change in the role of the judge and jury in the imposition of the death sentence in Florida between the time of the first-degree murder and the time of the trial constitutes an ex post facto violation. Petitioner views the change in the Florida death-sentencing procedure as depriving him of a substantial right to have the jury determine, without review by the trial judge, whether that penalty should be imposed. We conclude that the changes in the law are procedural, and on the whole ameliorative,6 and that there is no ex posto facto violation.
26
Article I, § 10, of the United States Constitution prohibits a State from passing any "ex post facto Law." Our cases have not attempted to precisely delimit the scope of this Latin phrase, but have instead given it substance by an accretion of case law. In Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68, 70 L.Ed. 216 (1925), Mr. Justice Stone summarized for the Court the characteristics of an ex post facto law:
27
"It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." It is equally well settled, however, that "(t)he inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed." Gibson v. Mississippi, 162 U.S. 565, 590, 16 S.Ct. 904, 910, 40 L.Ed. 1075 (1896). "(T)he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, see Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507, 59 L.Ed. 905, and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance." Beazell v. Ohio, supra, at 171, 46 S.Ct., at 69.
28
Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto. For example, in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), as of the date of the alleged homicide a convicted felon could not have been called as a witness. Subsequent to that date, but prior to the trial of the case, this law was changed; a convicted felon was called to the stand and testified, implicating Hopt in the crime charged against him. Even though this change in the law obviously had a detrimental impact upon the defendant, the Court found that the law was not ex post facto because it neither made criminal a theretofore innocent act, nor aggravated a crime previously committed, nor provided greater punishment, nor changed the proof necessary to convict. Id., at 589, 4 S.Ct., at 210.
29
In Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898), a defendant was convicted of murder solely upon circumstantial evidence. His conviction was reversed by the Missouri Supreme Court because of the inadmissibility of certain evidence. Prior to the second trial, the law was changed to make the evidence admissible and defendant was again convicted. Nonetheless, the Court held that this change was procedural and not violative of the Ex Post Facto Clause.
30
In the case at hand, the change in the statute was clearly procedural. The new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime. The following language from Hopt v. Utah, supra, applicable with equal force to the case at hand, summarizes our conclusion that the change was procedural and not a violation of the Ex Post Facto Clause:
31
"The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute." 110 U.S., at 589-590, 4 S.Ct., at 210.
32
In this case, not only was the change in the law procedural, it was ameliorative. It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law. Petitioner argues that the change in the law harmed him because the jury's recommendation of life imprisonment would not have been subject to review by the trial judge under the prior law. But it certainly cannot be said with assurance that, had his trial been conducted under the old statute, the jury would have returned a verdict of life.7
33
Hence, petitioner's speculation that the jury would have recommended life were the prior procedure in effect is not compelling. We must compare the two statutory procedures in toto to determine if the new may be fairly characterized as more onerous. Under the old procedure, the death penalty was "presumed" unless the jury, in its unbridled discretion, made a recommendation for mercy. The Florida Legislature enacted the new procedure specifically to provide the constitutional procedural protections required by Furman, thus providing capital defendants with more, rather than less, judicial protection. The protections thus provided, which this Court upheld in Proffitt, provided are substantial. A separate hearing is held; the defendant is allowed to present any relevant mitigating evidence. The jury renders an advisory verdict based upon its perception of aggravating and mitigating factors in the case. The court makes the final determination, but may impose death only after making a written finding that there are insufficient mitigating circumstances to outweigh the aggravating circumstances.
34
Finally, in what may be termed a tripartite review, the Florida Supreme Court is required to review each sentence of death. This required review, not present under the old procedure, is by no means perfunctory; as was noted in Proffitt, as of that time the Florida Supreme Court had vacated 8 of the 21 death sentences that it had reviewed to that date. 428 U.S., at 253, 96 S.Ct., at 2967.8 Perhaps most importantly, the Florida Supreme Court has held that the following standard must be used to review a trial court's rejection of a jury's recommendation of life:
35
"In 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) (emphasis added) (cited with approbation in Proffitt v. Florida, 428 U.S., at 249, 96 S.Ct., at 2965.)
36
This crucial protection demonstrates that the new statute affords significantly more safeguards to the defendant than did the old. Death is not automatic, absent a jury recommendation of mercy, as it was under the old procedure. A jury recommendation of life may be overridden by the trial judge only under the exacting standards of Tedder.9 Hence, defendants are not significantly disadvantaged vis-a-vis the recommendation of life by the jury; on the other hand, unlike the old statute, a jury determination of death is not binding. Under the new statute, defendants have a second chance for life with the trial judge and a third, if necessary, with the Florida Supreme Court. No such protection was afforded by the old statute. Hence, viewing the totality of the procedural changes wrought by the new statute, we conclude that the new statute did not work an onerous application of an ex post facto change in the law. Perhaps the ultimate proof of this fact is that this old statute was held to be violative of the United States Constitution in Donaldson v. Sack, 265 So.2d 499 (Fla.1972), while the new law was upheld by this Court in Proffitt, supra.
B
37
Petitioner's second ex post facto claim is based on the contention that at the time he murdered his children there was no death penalty "in effect" in Florida. This is so, he contends, because the earlier statute enacted by the legislature was, after the time he acted, found by the Supreme Court of Florida to be invalid under our decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Therefore, argues petitioner, there was no "valid" death penalty in effect in Florida as of the date of his actions. But this sophistic argument mocks the substance of the Ex Post Facto Clause. Whether or not the old statute would in the future, withstand constitutional attack, it clearly indicated Florida's view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.
38
Petitioner's highly technical argument is at odds with the statement of this Court in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329 (1940):
39
"The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 1125, 30 L.Ed. 178; Chicago, I. & L. Ry. Co. v.
40
Hackett, 228 U.S. 559, 566, 33 S.Ct. 581, 584, 57 L.Ed. 966. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored."
41
Here the existence of the statute served as an "operative fact" to warn the petitioner of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder. This was sufficient compliance with the ex post facto provision of the United States Constitution.
C
42
Petitioner's third ex post facto contention is based on the fact that the new Florida statute provides that anyone sentenced to life imprisonment must serve at least 25 years before becoming eligible for parole. The prior statute contained no such limitation. The Florida Supreme Court in Lee v. State, 294 So.2d 305 (1974), found that this provision restricting parole could not constitutionally be applied to crimes committed prior to its effective date. Petitioner contends that nonetheless its enactment by the Florida Legislature amounts to an ex post facto law, and that because of this he may successfully challenge the death sentence imposed upon him.
43
Petitioner, of course, did not receive a life sentence, and so any added onus attaching to it as a result of the change in Florida law had no effect on him. In Lindsey v. Washington, 301 U.S. 397, 400-401, 57 S.Ct. 797, 798, 81 L.Ed. 1182 (1937), the Court stated:
44
"The effect of the new statute is to make mandatory what was before only the maximum sentence. Under it the prisoners may be held to confinement during the entire fifteen year period. Even if they are admitted to parole, to which they become eligible after the expiration of the terms fixed by the board, they remain subject to its surveillance and the parole may, until the expiration of the fifteen years, be revoked at the discretion of the board or cancelled at the will of the governor. It is true that petitioners might have been sentenced to fifteen years under the old statute. But the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed. The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. Kring v. Missouri, (107 U.S. 221,) 228-229, 2 S.Ct. 443, 27 L.Ed. 506; In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 33 L.Ed. 835; Thompson v. Utah, 170 U.S. 343, 351, 18 S.Ct. 620, 42 L.Ed. 1061. It is for this reason that an increase in the possible penalty is ex post facto, Calder v. Bull, 3 Dall 386, 390, 1 L.Ed. 648; Cummings v. Missouri, (4 Wall. 277,) 326, 18 L.Ed. 356; Malloy v. South Carolina, 237 U.S. 180, 184, 35 S.Ct. 507, 59 L.Ed. 905, regardless of the length of the sentence actually imposed, since the measure of punishment prescribed by the later statute is more severe than that of the earlier, State v. Callahan, 109 La. 946, 33 So. 931; State v. Smith, 56 Or. 21, 107 P. 980." (Emphasis added.)
45
Lifted from their context and read expansively, the emphasized portions of the quoted language would lend some support to petitioner's claim. But we think that consideration of the Lindsey language in the factual context in which that case was decided does not lead to the result sought by petitioner.
46
Lindsey came here from the Supreme Court of Washington on a claim that a change in the state law respecting the sentence to be imposed upon one convicted of the felony of grand larceny violated the Ex Post Facto Clause. At the time Lindsey committed the larceny, the law provided for a maximum sentence of 15 years, and a minimum sentence of not less than 6 months. At the time Lindsey was sentenced, the law had been changed to provide for a mandatory 15-year sentence. Even though under the new statute a convict could be admitted to parole at a time far short of the expiration of his mandatory sentence, the Court observed that even on parole he would remain "subject to the surveillance" of the parole board and that his parole itself was subject to revocation.
47
Lindsey, then, had received a sentence under the new law which was within permissible bounds under the old law, albeit at the outer limits of those bounds. But under the new law it was the only sentence he could have received, while under the old law the sentencing judge could in his discretion have imposed a much shorter sentence. In contrast to the petitioner here, Lindsey was not complaining in the abstract about some change in the law, which as events proved, would have no applicability to his case. His complaint was that the new law totally eliminated any sentence of less than 15 years once he was convicted of larceny, and thereby assured that he would receive what was only the discretionary maximum sentence under the old law.
48
We think the excerpted language from Lindsey must be read in the light of these facts to mean that one is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old. It is one thing to find an ex post facto violation where under the new law a defendant must receive a sentence which was under the old law only the maximum in a discretionary spectrum of length; it would be quite another to do so in a case, such as this, where the change has had no effect on the defendant in the proceedings of which he complains.
49
Petitioner here can make no claim comparable to Lindsey's. Under the new law, both life imprisonment and death remain as possible alternative sentences. Only if we were to read the excerpted portion of the quoted language from Lindsey to confer standing on the defendant to complain of an added burden newly attached to a sentence which was never imposed on him would that language assist him. But we hold that petitioner, having been sentenced to death, may not complain of burdens attached to the life sentence under the new law which may not have attached to it under the old.
D
50
After our Furman decision and its own decision in Donaldson v. Sack, the Florida Supreme Court resentenced all prisoners under sentence of death pursuant to the old statute to life imprisonment. Anderson v. State, 267 So.2d 8 (Fla.1972); In re Baker, 267 So.2d 331 (1972). Petitioner argues that since his crimes were committed before our decision in Furman, the imposition of the death sentence upon him pursuant to the new statute which was in effect at the time of his trial denies him equal protection of the laws.
51
But petitioner is simply not similarly situated to those whose sentences were commuted. He was neither tried nor sentenced prior to Furman, as were they, and the only effect of the former statute was to provide sufficient warning of the gravity Florida attached to first-degree murder so as to make the application of this new statute to him consistent with the Ex Post Facto Clause of the United States Constitution. Florida obviously had to draw the line at some point between those whose cases had progressed sufficiently far in the legal process as to be governed solely by the old statute, with the concomitant unconstitutionality of its death penalty provision, and those whose cases involved acts which could properly subject them to punishment under the new statute. There is nothing irrational about Florida's decision to relegate petitioner to the latter class, since the new statute was in effect at the time of his trial and sentence.
III
52
There was, understandably, extensive pretrial publicity concerning several aspects of this case. We accept petitioner's assertion, Brief for Petitioner 38-48, that there was substantial media coverage, including a number of television and radio stories regarding the various aspects of the case.
53
In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), we reviewed a trial in which many jurors had heard of the defendant through extensive news coverage. Characterizing our previous cases in which we had overturned a state-court conviction on these grounds as involving "a trial atmosphere that had been utterly corrupted by press coverage," id., at 798, 95 S.Ct., at 2035, we recognized:
54
"Qualified jurors need not, however, be totally ignorant of the facts and issues involved.
55
" 'To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' " Id., at 799-800, 95 S.Ct., at 2036, quoting from Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).
56
We concluded that the petitioner in Murphy had failed to show that the trial setting was inherently prejudicial or that the jury selection process permitted an inference of actual prejudice. 421 U.S., at 803, 95 S.Ct., at 2037.
57
The Florida Supreme Court in this case noted that 78 prospective jurors were interviewed, and that petitioner exercised only 27 of his 32 peremptory challenges. Specifically referring to our decision in Murphy, that court concluded:
58
"(W)e find from the record that the trial judge did everything possible to insure an impartial trial for the defendant. The jurors, carefully and extensively examined by defense counsel to determine that they could be fair and impartial, were sequestered and (a) comprehensive gag order was placed on all participants of the trial.
59
"Appellant has failed to show that he did not receive a fair and impartial trial, that the setting of his trial was inherently prejudicial." 328 So.2d, at 439-440.
60
Petitioner's argument that the extensive coverage by the media denied him a fair trial rests almost entirely upon the quantum of publicity which the events received. He has directed us to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected. But under Murphy, extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a "trial atmosphere . . . utterly corrupted by press coverage," Murphy v. Florida, supra, 421 U.S., at 798, 95 S.Ct., at 2035. One who is reasonably suspected of murdering his children cannot expect to remain anonymous. Petitioner has failed to convince us that under the "totality of circumstances," Murphy, supra, the Florida Supreme Court was wrong in finding no constitutional violation with respect to the pretrial publicity. The judgment of the Supreme Court of Florida is therefore
61
Affirmed.
62
Mr. Chief Justice BURGER, concurring.
63
I join the opinion of the Court. A crucial factor in this case, for me, is that, as the Court's opinion recites, when petitioner committed the crime, a Florida statute permitted the death penalty for the offense. Petitioner was at least constructively on notice that this penalty might indeed follow his actions. During the time which elapsed between the commission of the offense and the trial, the statute was changed to provide different procedures for determining whether death was an appropriate punishment. But these new procedures, taken as a whole, were, if anything, more favorable to the petitioner; consequently the change cannot be read otherwise than as the Court's opinion suggests.
64
Mr. Justice BRENNAN and Mr. Justice MARSHALL, dissenting.
65
Adhering to our views 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, 231, 96 S.Ct. 2909, 2950, 2973, 49 L.Ed.2d 859 (1976), we would vacate the death sentence in this case.
66
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
67
Only a few simple facts are relevant to the question of law presented by this case.1 At the time of petitioner's offense, there was no constitutional procedure for imposing the death penalty in Florida. Several months after his offense, Florida enacted the death penalty statute that was upheld in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913. Before this statute was passed, as a matter of Florida law, the crime committed by petitioner was not a capital offense.2 It is undisputed, therefore, that a law passed after the offense is the source of Florida's power to put petitioner to death.
68
The Court holds that Florida may apply this law to petitioner without violating the Ex Post Facto Clause.3 In its view, the unconstitutional law which was on the Florida statute books at the time of the offense "clearly indicated Florida's view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers." Ante, at 297. The Court concludes that the "fair warning" provided by the invalid statute "was sufficient compliance with the ex post facto provision of the United States Constitution." Ante, at 298.4
69
This conclusion represents a clear departure from the test the Court has applied in past cases construing the Ex Post Facto Clause. That test was stated in Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182, in language that might have been written with the present case in mind:
70
"The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer."5
71
Applying that test in Lindsey, the Court held that even though the statute in effect at the time of the crime authorized a sentence of 15 years in the discretion of the trial judge, that sentence could not be imposed pursuant to a new mandatory sentencing statute. Notwithstanding the defendant's "fair warning" of the possible 15-year sentence, the Court held that the change in the standard of punishment could not be retroactively applied to him.6 The change was invalid simply because the new standard increased the probability of a severe sentence. In the case before us the new standard created the possibility of a death sentence that could not have been lawfully imposed when the offense was committed. A more dramatically different standard of punishment is difficult to envision.
72
We should adhere to the Lindsey test. Fair warning cannot be the touchstone, for two reasons. First, "fair warning" does not provide a workable test for deciding particular cases. Second, as Mr. Justice Harlan has explained,7 fair notice is not the only important value underlying the constitutional prohibition; the Ex Post Facto Clause also provides a basic protection against improperly motivated or capricious legislation.8 It ensures that the sovereign will govern impartially and that it will be perceived as doing so. The Court's "fair warning" test, if it extends beyond this case, would allow government action that is just the opposite of impartial. If that be so, the "fair warning" rationale will defeat the very purpose of the Clause.
73
By what standard is the fairness of the warning contained in an unconstitutional statute to be judged? Is an itinerant, who may not have the slightest notion of what Florida's statute books contain, to be judged differently from a local lawyer? The assumption that the former has "fair warning" can only rest on the somewhat unrealistic presumption that everyone is deemed to know the law. But it is not words in statute books that constitute the law. If citizens are bound to know the law, "they (are) bound to know it as we have expounded it." Kring v. Missouri, 107 U.S. 221, 235, 2 S.Ct. 443, 455, 27 L.Ed. 506. A consistent application of that presumption would require the conclusion that neither the lawyer nor the itinerant had fair warning because both must also be presumed to know that the old Florida statute was a nullity. The Court's test cannot fairly be applied on the basis of a particular individual's actual knowledge of the law; if applied on the basis of a presumed knowledge of the law, it requires that this death sentence be vacated.
74
As applied to pre-Furman death penalty statutes, the Court's test is dramatically inadequate. The Court makes the assumption that the "existence on the statute books" of the pre-Furman statute provided "fair warning" to petitioner "of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder." Ante, at 297, 298. On the contrary, capital punishment at the time of Furman had "for all practical purposes run its course." Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (White, J., concurring). The death penalty at that time was "freakishly imposed" and "cruel and unusual in the same way that being struck by lightning is cruel and unusual." Id., at 310, 309, 92 S.Ct., at 2763, 2762 (Stewart, J., concurring). The possibility of such capricious punishment is not "fair warning," under any meaningful use of those words.
75
If the Court's rationale is applicable to all cases in which a State replaces an unconstitutional death penalty statute with a subsequent statute, it is dramatically at odds with the common understanding of the meaning of the Clause. That understanding was most plainly revealed by the nationwide response to this Court's invalidation of the death penalty in Furman v. Georgia, supra. Of the hundreds of prisoners on death row at the time of that decision, none was resentenced to death. Each of those persons, at the time of his offense, had precisely the same "fair warning" as this petitioner. But our state courts and state legislatures uniformly acted on the assumption that none of them could be executed pursuant to a subsequently enacted statute. Under the "fair warning" rationale the Court adopts today, there was, and is, no such constitutional barrier.
76
If I am correct that the Ex Post Facto Clause was intended as a barrier to capricious government action, today's holding is actually perverse. For when human life is at stake, the need to prevent capricious punishment is greatest, as our decisions in Furman and Proffitt establish. Cf. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655. Yet the Court's holding may lead to results which are intolerably arbitrary. For example, the trial in Miller v. State, 332 So.2d 65 (Fla. 1976), was delayed by the defendant's incompetence to stand trial. By the time his capacity was restored, Florida had enacted its new death penalty statute. Had it not been for his fortuitous illness, defendant would have been tried promptly and escaped the death penalty. Because of a delay over which he had no control, the enactment of an ex post facto statute was held to entitle the State to put him to death. The capricious consequence is particularly grotesque because Miller may well have been advised before trial that this Court's decision in Furman had removed the possibility of a death sentence.9
77
Because a logical application of the Court's "fair warning" rationale would lead to such manifestly intolerable results,10 I assume that this case will ultimately be regarded as nothing more than an archaic gargoyle. It is nevertheless distressing to witness such a demeaning construction of a majestic bulwark in the framework of our Constitution.
78
I respectfully dissent.
1
These background facts, not referred to in the opinion of the Supreme Court of Florida, 328 So.2d 433 (1976), are not disputed and are gleaned from the briefs of the parties. See Brief for Petitioner 4-13; accord, Brief for Respondent 3.
2
See Florida Appellate Rule 4.5g.
3
The text of those statutes is as follows:
"Recommendation to mercy. A defendant found guilty by a jury of an offense punishable by death shall be sentenced to death unless the verdict includes a recommendation to mercy by a majority of the jury. When the verdict includes a recommendation to mercy by a majority of the jury, the court shall sentence the defendant to life imprisonment. A defendant found guilty by the court of an offense punishable by death on a plea of guilty or when a jury is waived shall be sentenced by the court to death or life imprisonment." Fla.Stat.Ann. § 921.141 (Supp.1971-1972).
"Penalties for felonies and misdemeanors. (1) A person who has been convicted of a capital felony shall be punished by death unless the verdict includes a recommendation to mercy by a majority of the jury, in which case the punishment shall be life imprisonment. A defendant found guilty by the court of a capital felony on a plea of guilty or when a jury is waived shall be sentenced to death or life imprisonment, and (sic ) the discretion of the court." Fla.Stat.Ann. § 775.082 (1971).
4
The constitutionality of this statute has been upheld by the Florida Supreme Court, State v. Dixon, 283 So.2d 1 (1973), and by this Court, Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).
5
The full text of revised § 921.141 (Supp.1976-1977) is as follows:
"921.141 Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence
"(1) Separate proceedings on issue of penalty. Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by § 775.082. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a special juror or jurors as provided in Chapter 913 to determine the issue of the imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose, unless waived by the defendant. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (6) and (7). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the constitutions of the United States or of the State of Florida. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.
"(2) Advisory sentence by the jury. After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court, based upon the following matters:
"(a) Whether sufficient aggravating circumstances exist as enumerated in subsection (6);
"(b) Whether sufficient mitigating circumstances exist as enumerated in
subsection (7), which outweigh the aggravating circumstances found to exist; and
"(c) Based on these considerations, whether the defendant should be sentenced to life (imprisonment) or death.
"(3) Findings in support of sentence of death. Notwithstanding the recommendation of a majority of the jury, the court after weighing the aggravating and mitigating circumstances shall enter a sentence of life imprisonment or death, but if the 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) That sufficient aggravating circumstances exist as enumerated in subsection (6), and
"(b) That there are insufficient mitigating circumstances, as enumerated in subsection (7), to outweigh the aggravating circumstances.
"In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in subsections (6) and (7) and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence, the court shall impose sentence of life imprisonment in accordance with section 775.082.
"(4) Review of judgment and sentence. The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida within sixty (60) days after certification by the sentencing court of the entire record, unless the time is extended for an additional period not to exceed thirty (30) days by the Supreme Court for good cause shown. Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the Supreme Court.
"(5) Aggravating circumstances. Aggravating circumstances shall be limited to the following:
"(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 affecting 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.
"(6) Mitigating circumstances. Mitigating circumstances shall be the following:
"(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."
6
These are independent bases for our decision. For example, in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), we found a procedural change not ex post facto even though the change was by no means ameliorative.
7
For example, the jury's recommendation may have been affected by the fact that the members of the jury were not the final arbiters of life or death. They may have chosen leniency when they knew that that decision rested ultimately on the shoulders of the trial judge, but might not have followed the same course if their vote were final.
8
Since that time, the State informs us, the Florida Supreme Court has reversed nine death sentences, and affirmed eight. Brief for Respondent 18-19, n. 3; Respondent's Notice of Additional Authority.
9
The fact that the trial judge imposed a death sentence after the jury had recommended life in this case in no way denigrates the procedural protections afforded by the new procedure. The judge did so in circumstances where there were obvious and substantial aggravating factors, and where there had been no significant mitigating factors adduced. To demonstrate that it was the nature of the crime, rather than the scope of the procedure, that resulted in the death sentence in this case, we set forth in extenso the conclusions of the trial court at the sentencing phase:
"There are sufficient and great aggravating circumstances which exist to justify the sentence of death.
"In concluding my findings I would like to point out that my 22 years of legal experience have been almost exclusively in the field of criminal law.
"The Judge of this Court has been a defense attorney of criminal cases, a prosecutor for eight and one half years and a Criminal Court Judge and a Circuit Judge Felony Division for three and one half years.
"During this (sic ) 22 years I have defended, prosecuted and held trial of almost every type of serious crime. During these years of legal experience I have never known of a more heinous, atrocious and cruel crime than this one.
"My experience with the sordid, tragic and violent side of life has not been confined to the Courtroom. During World War II, I was a United States Army Paratrooper and served overseas in ground combat. I have had friends blown to bits and have seen death and suffering in every conceivable form.
"I am not easily shocked or (a)ffected by tragedy or cruelty but this murder of a helpless, defenseless and innocent child is the most cruel, atrocious and heinous crime I have eve(r) personally known of and it is deserving of no sentence but death." App. 49.
1
The atrocious character of this individual's crimes, which the Court recounts in such detail, is of course no more relevant to the legal issue than the fact that 10 of the 12 jurors who heard all of the evidence voted to spare his life.
2
In response to this Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the Florida Supreme Court held that the Florida death penalty had been abolished, that even the category of "capital offenses" had ceased to exist, and that there was no possible procedure under existing Florida law for imposing the penalty. Donaldson v. Sack, 265 So.2d 499 (1972); State v. Whalen, 269 So.2d 678 (1972). Following these decisions, therefore, the crime committed by petitioner was not a capital offense.
3
Article I, § 10, provides that "(n)o State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . . ." There is a separate prohibition against ex post facto laws in Art. I, § 9, which applies to Congress.
4
In support of this conclusion, the Court cites not a single case involving the Ex Post Facto Clause. Instead, it relies solely on a case which held that a decision of this Court could not serve as a basis for a retroactive attack on a final judgment in a civil case. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329.
5
Cf. Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506, in which the Court reviewed a number of state cases involving ex post facto legislation and explicitly endorsed this "excellent observation" by Judge Denio of the New York Court of Appeals:
" 'No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority, before the imputed offence was committed, and which existed as a law at that time.' " Id., at 230-231, 2 S.Ct., at 451, quoting Hartung v. People, 22 N.Y. 95, 104 (1860) (emphasis in original).
6
This language from Mr. Justice Stone's opinion is, I believe, plainly applicable to this case:
"It is true that petitioners might have been sentenced to fifteen years under the old statute. But the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed. The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. King v. Missouri, supra, 107 U.S. 221, 228-229, 2 S.Ct. 443, 27 L.Ed. 506; In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 33 L.Ed. 835; Thompson v. Utah, 170 U.S. 343, 351, 18 S.Ct. 620, 42 L.Ed. 1061. It is for this reason that an increase in the possible penalty is ex post facto, Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648; Cummings v. Missouri, (4 Wall. 277,) 326 (, 18 L.Ed. 356); Malloy v. South Carolina, 237 U.S. 180, 184, 35 S.Ct. 507, 59 L.Ed. 905, regardless of the length of the sentence actually imposed, since the measure of punishment prescribed by the later statute is more severe than that of the earlier, State v. Callahan, 109 La. 946, 33 So. 931; State v. Smith, 56 Or. 21, 107 P. 980.
"Removal of the possibility of a sentence of less than fifteen years, at the end of which petitioners would be freed from further confinement and the tutelage of a parole revocable at will, operates to their detriment in the sense that the standard of punishment adopted by the new statute is more onerous than that of the old. It could hardly be thought that, if a punishment for murder of life imprisonment or death were changed to death alone, the latter penalty could be applied to homicide committed before the change. Marion v. State, 16 Neb. 349, 20 N.W. 289. Yet this is only a more striking instance of the detriment which ensues from the revision of a statute providing for a maximum and minimum punishment by making the maximum compulsory. We need not inquire whether this is technically an increase in the punishment annexed to the crime, this is technically an increase in the punishment annexed to the crime, see Calder v. Bull, supra, 3 Dall. 386, 390, 1 L.Ed. 648. It is plainly to the substantial disadvantage of petitioners . . . ." 301 U.S., at 401-402, 57 S.Ct., at 799.
In this case, it is also plain to the substantial disadvantage of the petitioner to be sentenced to death pursuant to a statute that was enacted after his offense was committed, when he could not have been validly sentenced to death under the law in effect at the time of the offense.
7
Mr. Justice Harlan understood the ex post facto clause as serving a purpose beyond ensuring that fair notice be given of the legal consequences of an individual's actions. He stated:
"Aside from problems of warning and specific intent, the policy of the prohibition against ex post facto legislation would seem to rest on the apprehension that the legislature, in imposing penalties on past conduct, even though the conduct could properly have been made criminal and even though the defendant who engaged in that conduct in the past believed he was doing wrong (as for instance when the penalty is increased retroactively on an existing crime), may be acting with a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty against specific persons or classes of persons." James v. United States, 366 U.S. 213, 247 n. 3, 81 S.Ct. 1052, 1070, 6 L.Ed.2d 246 (separate opinion).
8
Unlike the procedural guarantees in the Bill of Rights which originally were applicable only to the Federal Government, the Ex Post Facto Clause has always applied to the States. Mr. Justice Chase, writing just a few years after the Constitution was adopted, stated that the Clause was probably a result of the ex post facto laws and bills of attainder passed in England. "With very few exceptions, the advocates of such laws were stimulated by ambition, or personal resentment, and vindictive malice. To prevent such, and similar, acts of violence and injustice, . . . the Federal and State Legislatures, were prohibited from passing any bill of attainder ; or any ex post facto law." Calder v. Bull, 3 Dall. 386, 389, 1 L.Ed. 648. It is an important indication of the thought of the times that Mr. Justice Chase believed that the Clause did no more than state an inherent rule of government:
"This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. . . . The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them . . . . To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments." Id., at 388-389 (italics omitted).
9
A comment by Judge Learned Hand on the unfairness of extending a statute of limitations after it had run has even greater force if applied to this kind of situation:
"The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest." Falter v. United States, 23 F.2d 420, 425-426 (CA2 1928).
10
Perhaps this is an area in which an example is worth more than argument. In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 demonstrators were convicted under an ordinance which prohibited picketing within 150 feet of a school. This Court affirmed convictions under an anti-noise ordinance but reversed the convictions under the anti-picketing ordinance. The reason for reversal was that the ordinance exempted peaceful picketing of any school involved in a labor dispute; it was therefore held to be invalid because it was not neutral as to content. See Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212. But in the meantime, the ordinance had been amended in 1971 to delete the labor exemption thus removing the First Amendment problem, 408 U.S., at 107 n. 2, 92 S.Ct., at 2298. As I understand today's decision, these demonstrators could now be convicted of violating the 1971 ordinance on the basis of their actions in 1969, since they were on fair notice that the State intended to prohibit their conduct. At least in Grayned there was no reason to think that the 1971 ordinance was passed with retroactive application in mind I am sure that before today no one would have considered such an application constitutional but the potential for this kind of legislative (and prosecutorial) abuse is created by the Court's holding. It was precisely this potential that the Framers wished to avoid.
Indeed, the Court's holding today seems inconsistent with its holding in Grayned. For in Grayned, the Court agreed with a concession that the 1971 amendment " 'has, of course, no effect on Appellant's personal situation,' " and went on to say that "(n)ecessarily, we must consider the facial constitutionality of the ordinance in effect when appellant was arrested and convicted." 408 U.S., at 107 n. 2, 92 S.Ct., at 2298 n. 2. Under today's holding, it is difficult to see why the 1971 amendment could not simply have been applied ex post facto to cure the defect in the original statute.
| 01
|
432 U.S. 197
97 S.Ct. 2319
53 L.Ed.2d 281
Gordon G. PATTERSON, Jr., Appellant,v.State of NEW YORK.
No. 75-1861.
Argued March 1, 1977.
Decided June 17, 1977.
Syllabus
New York law requiring that the defendant in a prosecution for second-degree murder prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter held not to violate the Due Process Clause of the Fourteenth Amendment. Mallaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, distinguished. Pp. 201-216.
(a) Such affirmative defense does not serve to negative any facts of the crime which the State must prove in order to convict, but constitutes a separate issue on which the defendant is required to carry the burden of persuasion. Pp. 206-207.
(b) The Due Process Clause does not put New York to the choice of abandoning such an affirmative defense or undertaking to disprove its existence in order to convict for a crime which is otherwise within the State's constitutional powers to sanction by substantial punishment. If the State chooses to recognize a factor that mitigates the degree of criminality or punishment, it may assure itself that the fact has been established with reasonable certainty, and to recognize at all a mitigating circumstance does not require the State to prove beyond a reasonable doubt its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, expensive, and inaccurate. Pp. 207-209.
39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898, affirmed.
Victor J. Rubino, New York City, for the appellant.
John M. Finnerty, Steuben County Dist. Atty., Bath, N.Y., for the appellee.
Mr. Justice WHITE delivered the opinion of the Court.
1
The question here is the constitutionality under the Fourteenth Amendment's Due Process Clause of burdening the defendant in a New York State murder trial with proving the affirmative defense of extreme emotional disturbance as defined by New York law.
2
* After a brief and unstable marriage, the appellant, Gordon Patterson, Jr., became estranged from his wife, Roberta. Roberta resumed an association with John Northrup, a neighbor to whom she had been engaged prior to her marriage to appellant. On December 27, 1970, Patterson borrowed a rifle from an acquaintance and went to the residence of his father-in-law. There, he observed his wife through a window in a state of semiundress in the presence of John Northrup. He entered the house and killed Northrup by shooting him twice in the head.
3
Patterson was charged with second-degree murder. In New York there are two elements of this crime: (1) "intent to cause the death of another person"; and (2) "caus(ing) the death of such person or of a third person." N.Y.Penal Law § 125.25 (McKinney 1975).1 Malice aforethought is not an element of the crime. In addition, the State permits a person accused of murder to raise an affirmative defense that he "acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse."2
4
New York also recognizes the crime of manslaughter. A person is guilty of manslaughter if he intentionally kills another person "under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance."3 Appellant confessed before trial to killing Northrup, but at trial he raised the defense of extreme emotional disturbance.4
5
The jury was instructed as to the elements of the crime of murder. Focusing on the element of intent, the trial court charged:
6
"Before you, considering all of the evidence, can convict this defendant or any-one of murder, you must believe and decide that the People have established beyond a reasonable doubt that he intended, in firing the gun, to kill either the victim himself or some other human being. . . .
7
"Always remember that you must not expect or require the defendant to prove to your satisfaction that his acts were done without the intent to kill. Whatever proof he may have attempted, however far he may have gone in an effort to convince you of his innocence or guiltlessness, he is not obliged, he is not obligated to prove anything. It is always the People's burden to prove his guilt, and to prove that he intended to kill in this instance beyond a reasonable doubt." App. A70-A71.5
8
The jury was further instructed, consistently with New York law, that the defendant had the burden of proving his affirmative defense by a preponderance of the evidence. The jury was told that if it found beyond a reasonable doubt that appellant had intentionally killed Northrup but that appellant had demonstrated by a preponderance of the evidence that he had acted under the influence of extreme emotional disturbance, it had to find appellant guilty of manslaughter instead of murder.
9
The jury found appellant guilty of murder. Judgment was entered on the verdict, and the Appellate Division affirmed. While appeal to the New York Court of Appeals was pending, this Court decided Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), in which the Court declared Maine's murder statute unconstitutional. Under the Maine statute, a person accused of murder could rebut the statutory presumption that he committed the offense with "malice aforethought" by proving that he acted in the heat of passion on sudden provocation. The Court held that this scheme improperly shifted the burden of persuasion from the prosecutor to the defendant and was therefore a violation of due process. In the Court of Appeals appellant urged that New York's murder statute is functionally equivalent to the one struck down in Mullaney and that therefore his conviction should be reversed.6
10
The Court of Appeals rejected appellant's argument, holding that the New York murder statute is consistent with due process. 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898 (1976). The Court distinguished Mullaney on the ground that the New York statute involved no shifting of the burden to the defendant to disprove any fact essential to the offense charged since the New York affirmative defense of extreme emotional disturbance bears no direct relationship to any element of murder. This appeal ensued, and we noted probable jurisdiction. 429 U.S. 813, 97 S.Ct. 52, 50 L.Ed.2d 72 (1976). We affirm.
II
11
It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, Irvine v. California, 347 U.S. 128, 134, 74 S.Ct. 381, 384, 98 L.Ed. 561 (1954) (plurality opinion), and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally "within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion," and its decision in this regard is not subject to proscription under the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Speiser v. Randall, 357 U.S. 513, 523, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958); Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302 (1952); Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).
12
In determining whether New York's allocation to the defendant of proving the mitigating circumstances of severe emotional disturbance is consistent with due process, it is therefore relevant to note that this defense is a considerably expanded version of the common-law defense of heat of passion on sudden provocation and that at common law the burden of proving the latter, as well as other affirmative defenses indeed, "all . . . circumstances of justification, excuse or alleviation" rested on the defendant. 4 W. Blackstone, Commentaries *201; M. Foster, Crown Law 255 (1762); Mullaney v. Wilbur, supra, 421 U.S., at 693-694, 95 S.Ct., at 1886-1887.7 This was the rule when the Fifth Amendment was adopted, and it was the American rule when the Fourteenth Amendment was ratified. Commonwealth v. York, 50 Mass. 93 (1845).8
13
In 1895 the common-law view was abandoned with respect to the insanity defense in federal prosecutions. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895). This ruling had wide impact on the practice in the federal courts with respect to the burden of proving various affirmative defenses, and the prosecution in a majority of jurisdictions in this country sooner or later came to shoulder the burden of proving the sanity of the accused and of disproving the facts constituting other affirmative defenses, including provocation. Davis was not a constitutional ruling, however, as Leland v. Oregon, supra, made clear.9
14
At issue in Leland v. Oregon was the constitutionality under the Due Process Clause of the Oregon rule that the defense of insanity must be proved by the defendant beyond a reasonable doubt. Noting that Davis "obviously establish(ed) no constitutional doctrine," 343 U.S., at 797, 72 S.Ct. at 1007, the Court refused to strike down the Oregon scheme, saying that the burden of proving all elements of the crime beyond reasonable doubt, including the elements of premeditation and deliberation, was placed on the State under Oregon procedures and remained there throughout the trial. To convict, the jury was required to find each element of the crime beyond a reasonable doubt, based on all the evidence, including the evidence going to the issue of insanity. Only then was the jury "to consider separately the issue of legal sanity per se. . . ." Id., at 795, 72 S.Ct. at 1006. This practice did not offend the Due Process Clause even though among the 20 States then placing the burden of proving his insanity on the defendant, Oregon was alone in requiring him to convince the jury beyond a reasonable doubt.
15
In 1970, the Court declared that the Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). Five years later, in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Court further announced that under the Maine law of homicide, the burden could not constitutionally be placed on the defendant of proving by a preponderance of the evidence that the killing had occurred in the heat of passion on sudden provocation. The Chief Justice and Mr. Justice Rehnquist, concurring, expressed their understanding that the Mullaney decision did not call into question the ruling in Leland v. Oregon, supra, with respect to the proof of insanity.
16
Subsequently, the Court confirmed that it remained constitutional to burden the defendant with proving his insanity defense when it dismissed, as not raising a substantial federal question, a case in which the appellant specifically challenged the continuing validity of Leland v. Oregon. This occurred in Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976), an appeal from a Delaware conviction which, in reliance on Leland, had been affirmed by the Delaware Supreme Court over the claim that the Delaware statute was unconstitutional because it burdened the defendant with proving his affirmative defense of insanity by a preponderance of the evidence. The claim in this Court was that Leland had been overruled by Winship and Mullaney. We dismissed the appeal as not presenting a substantial federal question. Cf. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975).
III
17
We cannot conclude that Patterson's conviction under the New York law deprived him of due process of law. The crime of murder is defined by the statute, which represents a recent revision of the state criminal code, as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime. The statute does provide an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation which, if proved by a preponderance of the evidence, would reduce the crime to manslaughter, an offense defined in a separate section of the statute. It is plain enough that if the intentional killing is shown, the State intends to deal with the defendant as a murderer unless he demonstrates the mitigating circumstances.
18
Here, the jury was instructed in accordance with the statute, and the guilty verdict confirms that the State successfully carried its burden of proving the facts of the crime beyond a reasonable doubt. Nothing in the evidence, including any evidence that might have been offered with respect to Patterson's mental state at the time of the crime, raised a reasonable doubt about his guilt as a murderer; and clearly the evidence failed to convince the jury that Patterson's affirmative defense had been made out. It seems to us that the State satisfied the mandate of Winship that it prove beyond a reasonable doubt "every fact necessary to constitute the crime with which (Patterson was) charged." 397 U.S., at 364, 90 S.Ct., at 1073.
19
In convicting Patterson under its murder statute, New York did no more than Leland and Rivera permitted it to do without violating the Due Process Clause. Under those cases, once the facts constituting a crime are established beyond a reasonable doubt, based on all the evidence including the evidence of the defendant's mental state, the State may refuse to sustain the affirmative defense of insanity unless demonstrated by a preponderance of the evidence.
20
The New York law on extreme emotional disturbance follows this pattern. This affirmative defense, which the Court of Appeals described as permitting "the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them," 39 N.Y.2d, at 302, 383 N.Y.S.2d, at 582, 347 N.E.2d, at 907, does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion; and unless we are to overturn Leland and Rivera, New York has not violated the Due Process Clause, and Patterson's conviction must be sustained.
21
We are unwilling to reconsider Leland and Rivera. But even if we were to hold that a State must prove sanity to convict once that fact is put in issue, it would not necessarily follow that a State must prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment. Here, in revising its criminal code, New York provided the affirmative defense of extreme emotional disturbance, a substantially expanded version of the older heat-of-passion concept; but it was willing to do so only if the facts making out the defense were established by the defendant with sufficient certainty. The State was itself unwilling to undertake to establish the absence of those facts beyond a reasonable doubt, perhaps fearing that proof would be too difficult and that too many persons deserving treatment as murderers would escape that punishment if the evidence need merely raise a reasonable doubt about the defendant's emotional state. It has been said that the new criminal code of New York contains some 25 affirmative defenses which exculpate or mitigate but which must be established by the defendant to be operative.10 The Due Process Clause, as we see it, does not put New York to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment.
22
The requirement of proof beyond a reasonable doubt in a criminal case is "bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." Winship, 397 U.S., at 372, 90 S.Ct., at 1077 (Harlan, J., concurring). The social cost of placing the burden on the prosecution to prove guilt beyond a reasonable doubt is thus an increased risk that the guilty will go free. While it is clear that our society has willingly chosen to bear a substantial burden in order to protect the innocent, it is equally clear that the risk it must bear is not without limits; and Mr. Justice Harlan's aphorism provides little guidance for determining what those limits are. Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. Punishment of those found guilty by a jury, for example, is not forbidden merely because there is a remote possibility in some instances that an innocent person might go to jail.
23
It is said that the common-law rule permits a State to punish one as a murderer when it is as likely as not that he acted in the heat of passion or under severe emotional distress and when, if he did, he is guilty only of manslaughter. But this has always been the case in those jurisdictions adhering to the traditional rule. It is also very likely true that fewer convictions of murder would occur if New York were required to negative the affirmative defense at issue here. But in each instance of a murder conviction under the present law New York will have proved beyond a reasonable doubt that the defendant has intentionally killed another person, an act which it is not disputed the State may constitutionally criminalize and punish. If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonably certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate.11 We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society's interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.
24
This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard. "(I)t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime." McFarland v. American Sugar Rfg. Co., 241 U.S. 79, 86, 36 S.Ct. 498, 500, 60 L.Ed. 899 (1916). The legislature cannot "validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt." Tot v. United States, 319 U.S. 463, 469, 63 S.Ct. 1241, 1246, 87 L.Ed. 1519 (1943). See also Speiser v. Randall, 357 U.S., at 523-525, 78 S.Ct., at 1340-1341. Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934), also makes the point with sufficient clarity.
25
Long before Winship, the universal rule in this country was that the prosecution must prove guilt beyond a reasonable doubt. At the same time, the long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant. This did not lead to such abuses or to such widespread redefinition of crime and reduction of the prosecution's burden that a new constitutional rule was required.12 This was not the problem to which Winship was addressed. Nor does the fact that a majority of the States have now assumed the burden of disproving affirmative defenses for whatever reasons mean that those States that strike a different balance are in violation of the Constitution.13
IV
26
It is urged that Mullaney v. Wilbur necessarily invalidates Patterson's conviction. In Mullaney the charge was murder,14 which the Maine statute defined as the unlawful killing of a human being "with malice aforethought, either express or implied." The trial court instructed the jury that the words "malice aforethought" were most important because "malice aforethought is an essential and indispensable element of the crime of murder." Malice, as the statute indicated and as the court instructed, could be implied and was to be implied from "any deliberate, cruel act committed by one person against another suddenly . . . or without a considerable provocation," in which event an intentional killing was murder unless by a preponderance of the evidence it was shown that the act was committed "in the heat of passion, on sudden provocation." The instructions emphasized that " 'malice aforethought and heat of passion on sudden provocation are two inconsistent things'; thus, by proving the latter the defendant would negate the former." 421 U.S., at 686-687, 95 S.Ct. at 1883 (citation omitted).
27
Wilbur's conviction, which followed, was affirmed. The Maine Supreme Judicial Court held that murder and manslaughter were varying degrees of the crime of felonious homicide and that the presumption of malice arising from the unlawful killing was a mere policy presumption operating to cast on the defendant the burden of proving provocation if he was to be found guilty of manslaughter rather than murder a burden which the Maine law had allocated to him at least since the mid-1800's.
28
The Court of Appeals for the First Circuit then ordered that a writ of habeas corpus issue, holding that the presumption unconstitutionally shifted to the defendant the burden of proof with respect to an essential element of the crime. The Maine Supreme Judicial Court disputed this interpretation of Maine law in State v. Lafferty, 309 A.2d 647 (1973), declaring that malice aforethought, in the sense of premeditation, was not an element of the crime of murder and that the federal court had erroneously equated the presumption of malice with a presumption of premeditation.
29
"Maine law does not rely on a presumption of 'premeditation' (as Wilbur v. Mullaney assumed) to prove an essential element of unlawful homicide punishable as murder.
30
Proof beyond a reasonable doubt of 'malice aforethought' (in the sense of 'premeditation') is not essential to conviction. . . . (T)he failure of the State to prove 'premeditation' in this context is not fatal to such a prosecution because, by legal definition under Maine law, a killing becomes unlawful and punishable as 'murder' on proof of 'any deliberate, cruel act, committed by one person against another, suddenly without any, or without a considerable provocation.' State v. Neal, 37 Me. 468, 470 (1854). Neal has been frequently cited with approval by our Court." Id., at 664-665. (Emphasis added; footnote omitted.)
31
When the judgment of the First Circuit was vacated for reconsideration in the light of Lafferty, that court reaffirmed its view that Wilbur's conviction was unconstitutional. This Court, accepting the Maine court's interpretation of the Maine law, unanimously agreed with the Court of Appeals that Wilbur's due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat of passion upon sudden provocation.
32
Mullaney's holding, it is argued, is that the State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt.15 In our view, the Mullaney holding should not be so broadly read. The concurrence of two Justices in Mullaney was necessarily contrary to such a reading; and a majority of the Court refused to so understand and apply Mullaney when Rivera was dismissed for want of a substantial federal question.
33
Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. This is true even though the State's practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.
34
It was unnecessary to go further in Mullaney. The Maine Supreme Judicial Court made it clear that malice aforethought, which was mentioned in the statutory definition of the crime, was not equivalent to premeditation and that the presumption of malice traditionally arising in intentional homicide cases carried no factual meaning insofar as premeditation was concerned. Even so, a killing became murder in Maine when it resulted from a deliberate, cruel act committed by one person against another, "suddenly without any, or without a considerable provocation." State v. Lafferty, supra, at 665. Premeditation was not within the definition of murder; but malice, in the sense of the absence of provocation, was part of the definition of that crime. Yet malice, i. e., lack of provocation, was presumed and could be rebutted by the defendant only by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation. In Mullaney we held that however traditional this mode of proceeding might have been, it is contrary to the Due Process Clause as construed in Winship.
35
As we have explained, nothing was presumed or implied against Patterson; and his conviction is not invalid under any of our prior cases. The judgment of the New York Court of Appeals is
36
Affirmed.
37
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
38
Mr. Justice POWELL, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
39
In the name of preserving legislative flexibility, the Court today drains In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), of much of its vitality. Legislatures do require broad discretion in the drafting of criminal laws, but the Court surrenders to the legislative branch a significant part of its responsibility to protect the presumption of innocence.
40
* An understanding of the import of today's decision requires a comparison of the statutes at issue here with the statutes and practices of Maine struck down by a unanimous Court just two years ago in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
A.
41
Maine's homicide laws embodied the common-law distinctions along with the colorful common-law language. Murder was defined in the statute as the unlawful killing of a human being "with malice aforethought, either express or implied." Manslaughter was a killing "in the heat of passion, on sudden provocation, without express or implied malice aforethought." Id., at 686, and n. 3, 95 S.Ct., at 1883. Although "express malice" at one point may have had its own significant independent meaning, see Perkins, A Re-Examination of Malice Aforethought, 43 Yale L.J. 537, 546-552 (1934), in practice a finding that the killing was committed with malice aforethought had come to mean simply that heat of passion was absent. Indeed, the trial court in Mullaney expressly charged the jury that "malice aforethought and heat of passion on sudden provocation are two inconsistent things." 421 U.S., at 686-687, 95 S.Ct., at 1883. And the Maine Supreme Judicial Court had held that instructions concerning express malice (in the sense of premeditation) were unnecessary. The only inquiry for the jury in deciding whether a homicide amounted to murder or manslaughter was the inquiry into heat of passion on sudden provocation. State v. Lafferty, 309 A.2d 647, 664-665 (Me.1973). See 421 U.S., at 686, n. 4, 95 S.Ct. at 1883.
42
Our holding in Mullaney found no constitutional defect in these statutory provisions. Rather, the defect in Maine practice lay in its allocation of the burden of persuasion with respect to the crucial factor distinguishing murder from manslaughter. In Maine, juries were instructed that if the prosecution proved that the homicide was both intentional and unlawful, the crime was to be considered murder unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion on sudden provocation. Only if the defendant carried this burden would the offense be reduced to manslaughter.
43
New York's present homicide laws had their genesis in lingering dissatisfaction with certain aspects of the common-law framework that this Court confronted in Mullaney. Critics charged that the archaic language tended to obscure the factors of real importance in the jury's decision. Also, only a limited range of aggravations would lead to mitigation under the common-law formula, usually only those resulting from direct provocation by the victim himself. It was thought that actors whose emotions were stirred by other forms of outrageous conduct, even conduct by someone other than the ultimate victim, also should be punished as manslaughterers rather than murderers. Moreover, the common-law formula was generally applied with rather strict objectivity. Only provocations that might cause the hypothetical reasonable man to lose control could be considered. And even provocations of that sort were inadequate to reduce the crime to manslaughter if enough time had passed for the reasonable man's passions to cool, regardless of whether the actor's own thermometer had registered any decline. See generally W. LaFave & A. Scott, Criminal Law 528-530, 539-540, 571-582 (1972); Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum.L.Rev. 1425, 1446 (1968); ALI, Model Penal Code § 201.3, Comment (Tent. Draft No. 9, 1959); Perkins, supra. Cf. B. Cardozo, Law and Literature and Other Essays 99-101 (1931).
44
The American Law Institute took the lead in moving to remedy these difficulties. As part of its commendable undertaking to prepare a Model Penal Code, it endeavored to bring modern insights to bear on the law of homicide. The result was a proposal to replace "heat of passion" with the moderately broader concept of "extreme mental or emotional disturbance." The proposal first appeared in a tentative draft published in 1959, and it was accepted by the Institute and included as § 210.3 of the 1962 Proposed Official Draft.
45
At about this time the New York Legislature undertook the preparation of a new criminal code, and the Revised Penal Law of 1967 was the ultimate result. The new code adopted virtually word for word the ALI formula for distinguishing murder from manslaughter. N.Y.Penal Law §§ 125.20(2), 125.25(1)(a) (McKinney 1975).1 Under current New York law,2 those who kill intentionally are guilty of murder. But there is an affirmative defense left open to a defendant: If his act was committed "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse," the crime is reduced to manslaughter. The supposed defects of a formulation like Maine's have been removed. Some of the rigid objectivity of the common law is relieved, since reasonableness is to be determined "from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be." § 125.25(1)(a). The New York law also permits mitigation when emotional disturbance results from situations other than direct provocation by the victim. And the last traces of confusing archaic language have been removed. There is no mention of malice aforethought, no attempt to give a name to the state of mind that exists when extreme emotional disturbance is not present. The statute is framed in lean prose modeled after the ALI approach, giving operative descriptions of the crucial factors rather than attempting to attach the classical labels.
46
Despite these changes, the major factor that distinguishes murder from manslaughter in New York "extreme emotional disturbance" is undeniably the modern equivalent of "heat of passion." The ALI drafters made this abundantly clear. They were not rejecting the notion that some of those who kill in an emotional outburst deserve lesser punishment; they were merely refining the concept to relieve some of the problems with the classical formulation. See ALI, Model Penal Code, § 201.3, Comment, pp. 46-48 (Tent. Draft No. 9, 1959). The New York drafters left no doubt about their reliance on the ALI work. See 39 N.Y.2d 288, 300-301, 383 N.Y.S.2d 573, 580-581, 347 N.E.2d 898, 906 (1976). Both the majority and the dissenters in the New York Court of Appeals agreed that extreme emotional disturbance is simply "a new formulation" for the traditional language of heat of passion. Id., at 301, 383 N.Y.S.2d, at 581, 347 N.E.2d, at 906; id., at 312, 383 N.Y.S.2d, at 588, 347 N.E.2d, at 913-914 (Cooke, J., dissenting).
47
But in one important respect the New York drafters chose to parallel Maine's practice precisely, departing markedly from the ALI recommendation. Under the Model Penal Code the prosecution must prove the absence of emotional disturbance beyond a reasonable doubt once the issue is properly raised. See ALI, Model Penal Code, §§ 1.12, 210.3 (Proposed Official Draft 1962); id., § 1.13, Comment, pp. 108-118 (Tent. Draft No. 4, 1955). In New York, however, extreme emotional disturbance constitutes an affirmative defense rather than a simple defense. Consequently the defendant bears not only the burden of production on this issue; he has the burden of persuasion as well. N.Y. Penal Law § 25.00 (McKinney 1975).
B
48
Mullaney held invalid Maine's requirement that the defendant prove heat of passion. The Court today, without disavowing the unanimous holding of Mullaney, approves New York's requirement that the defendant prove extreme emotional disturbance. The Court manages to run a constitutional boundary line through the barely visible space that separates Maine's law from New York's. It does so on the basis of distinctions in language that are formalistic rather than substantive.
49
This result is achieved by a narrowly literal parsing of the holding in Winship: "(T)he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." 397 U.S., at 364, 90 S.Ct. at 1073. The only "facts" necessary to constitute a crime are said to be those that appear on the face of the statute as a part of the definition of the crime.3 Maine's statute was invalid, the Court reasons, because it "defined (murder) as the unlawful killing of a human being 'with malice aforethought, either express or implied.' " Ante, at 212. "(M)alice," the Court reiterates, "in the sense of the absence of provocation, was part of the definition of that crime." Ante, at 216. Winship was violated only because this "fact" malice was "presumed" unless the defendant persuaded the jury otherwise by showing that he acted in the heat of passion.4 New York, in form presuming no affirmative "fact" against Patterson,5 and blessed with a statute drafted in the leaner language of the 20th century, escapes constitutional scrutiny unscathed even though the effect on the defendant of New York's placement of the burden of persuasion is exactly the same as Maine's. See 39 N.Y.2d, at 312-313, 383 N.Y.S.2d, at 588-589, 347 N.E.2d, at 913-914 (Cooke, J., dissenting).
50
This explanation of the Mullaney holding bears little resemblance to the basic rationale of that decision.6 But this is not the cause of greatest concern. The test the Court today establishes allows a legislature to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime. The sole requirement is that any references to the factor be confined to those sections that provide for an affirmative defense.7
51
Perhaps the Court's interpretation of Winship is consistent with the letter of the holding in that case. But little of the spirit survives. Indeed, the Court scarcely could distinguish this case from Mullaney without closing its eyes to the constitutional values for which Winship stands. As Mr. Justice Harlan observed in Winship, "a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." 397 U.S., at 370, 90 S.Ct. at 1076 (concurring opinion). See Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1322, 1341-1342, 2 L.Ed.2d 1460 (1958). Explaining Mullaney, the Court says today, in effect, that society demands full confidence before a Maine factfinder determines that heat of passion is missing a demand so insistent that this Court invoked the Constitution to enforce it over the contrary decision by the State. But we are told that society is willing to tolerate far less confidence in New York's factual determination of precisely the same functional issue. One must ask what possibly could explain this difference in societal demands. According to the Court, it is because Maine happened to attach a name "malice aforethought" to the absence of heat of passion, whereas New York refrained from giving a name to the absence of extreme emotional disturbance. See 39 N.Y.2d, at 313, 383 N.Y.S.2d, at 589, 347 N.E.2d, at 914 (Cooke, J., dissenting).
52
With all respect, this type of constitutional adjudication is indefensibly formalistic. A limited but significant check on possible abuses in the criminal law now becomes an exercise in arid formalities. What Winship and Mullaney had sought to teach about the limits a free society places on its procedures to safeguard the liberty of its citizens becomes a rather simplistic lesson in statutory draftsmanship. Nothing in the Court's opinion prevents a legislature from applying this new learning to many of the classical elements of the crimes it punishes.8 It would be preferable, if the Court has found reason to reject the rationale of Winship and Mullaney, simply and straightforwardly to overrule those precedents.
53
The Court understandably manifests some uneasiness that its formalistic approach will give legislatures too much latitude in shifting the burden of persuasion. And so it issues a warning that "there are obviously constitutional limits beyond which the States may not go in this regard." Ante, at 210. The Court thereby concedes that legislative abuses may occur and that they must be curbed by the judicial branch. But if the State is careful to conform to the drafting formulas articulated today, the constitutional limits are anything but "obvious." This decision simply leaves us without a conceptual framework for distinguishing abuses from legitimate legislative adjustments of the burden of persuasion in criminal cases.9
II
54
It is unnecessary for the Court to retreat to a formalistic test for applying Winship. Careful attention to the Mullaney decision reveals the principles that should control in this and like cases. Winship held that the prosecution must bear the burden of proving beyond a reasonable doubt " 'the existence of every fact necessary to constitute the crime charged.' " 397 U.S., at 363, 90 S.Ct. at 1073 quoting Davis v. United States, 160 U.S. 469, 493, 16 S.Ct. 353, 360, 40 L.Ed. 499 (1895). In Mullaney we concluded that heat of passion was one of the "facts" described in Winship that is, a factor as to which the prosecution must bear the burden of persuasion beyond a reasonable doubt. 421 U.S., at 704, 95 S.Ct. at 1892. We reached that result only after making two careful inquiries. First, we noted that the presence or absence of heat of passion made a substantial difference in punishment of the offender and in the stigma associated with the conviction. Id., at 697-701, 95 S.Ct. at 1888. Second, we reviewed the history, in England and this country, of the factor at issue. Id., at 692-696, 95 S.Ct. at 1886-1888. Central to the holding in Mullaney was our conclusion that heat of passion "has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide." Id., at 696, 95 S.Ct. at 1888.
55
Implicit in these two inquiries are the principles that should govern this case. The Due Process Clause requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the factor at issue makes a substantial difference in punishment and stigma. The requirement of course applies a fortiori if the factor makes the difference between guilt and innocence. But a substantial difference in punishment alone is not enough. It also must be shown that in the Anglo-American legal tradition10 the factor in question historically has held that level of importance.11 If either branch of the test is not met, then the legislature retains its traditional authority over matters of proof. But to permit a shift in the burden of persuasion when both branches of this test are satisfied would invite the undermining of the presumption of innocence, "that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.' " In re Winship, 397 U.S., at 363, 90 S.Ct. at 1072, quoting from Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 402, 39 L.Ed. 481 (1895). See Cool v. United States, 409 U.S. 100, 104, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972); Ivan V. v. City of New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659 (1972); Lego v. Twomey, 404 U.S. 477, 486-487, 92 S.Ct. 619, 625, 30 L.Ed.2d 618 (1972); Morissette v. United States, 342 U.S. 246, 275, 72 S.Ct. 240, 255, 96 L.Ed. 288 (1952); Bailey v. Alabama, 219 U.S. 219, 236, 31 S.Ct. 145, 55 L.Ed. 191 (1911); Davis v. United States, supra. This is not a test that rests on empty form, for "Winship is concerned with substance rather than . . . formalism." Mullaney v. Wilbur, 421 U.S., at 699, 95 S.Ct. at 1890.
56
I hardly need add that New York's provisions allocating the burden of persuasion as to "extreme emotional disturbance" are unconstitutional when judged by these standards. "Extreme emotional disturbance" is, as the Court of Appeals recognized, the direct descendant of the "heat of passion" factor considered at length in Mullaney. I recognize, of course, that the differences between Maine and New York law are not unimportant to the defendant; there is a somewhat broader opportunity for mitigation. But none of those distinctions is relevant here. The presence or absence of extreme emotional disturbance makes a critical difference in punishment and stigma, and throughout our history the resolution of this issue of fact, although expressed in somewhat different terms, has distinguished manslaughter from murder. See 4 W. Blackstone, Commentaries *190-193, 198-201.
III
57
The Court beats its retreat from Winship apparently because of a concern that otherwise the federal judiciary will intrude too far into substantive choices concerning the content of a State's criminal law.12 The concern is legitimate, see generally Powell v. Texas, 392 U.S. 514, 533-534, 88 S.Ct. 2145, 2154, 20 L.Ed.2d 1254 (1968) (plurality opinion); Leland v. Oregon, 343 U.S. 790, 803, 72 S.Ct. 1002, 1009, 96 L.Ed. 1302 (1952) (Frankfurter, J., dissenting), but misplaced. Winship and Mullaney are no more than what they purport to be: decisions addressing the procedural requirements that States must meet to comply with due process. They are not outposts for policing the substantive boundaries of the criminal law.
58
The Winship/Mullaney test identifies those factors of such importance, historically, in determining punishment and stigma that the Constitution forbids shifting to the defendant the burden of persuasion when such a factor is at issue. Winship and Mullaney specify only the procedure that is required when a State elects to use such a factor as part of its substantive criminal law. They do not say that the State must elect to use it. For example, where a State has chosen to retain the traditional distinction between murder and manslaughter, as have New York and Maine, the burden of persuasion must remain on the prosecution with respect to the distinguishing factor, in view of its decisive historical importance. But nothing in Mullaney or Winship precludes a State from abolishing the distinction between murder and manslaughter and treating all unjustifiable homicide as murder.13 In this significant respect, neither Winship nor Mullaney eliminates the substantive flexibility that should remain in legislative hands.
59
Moreover, it is unlikely that more than a few factors although important ones for which a shift in the burden of persuasion seriously would be considered will come within the Mullaney holding. With some exceptions, then, the State has the authority "to recognize a factor that mitigates the degree of criminality or punishment" without having "to prove its nonexistence in each case in which the fact is put in issue." Ante, at 209. New ameliorative affirmative defenses,14 about which the Court expresses concern, generally remain undisturbed by the holdings in Winship and Mullaney and need not be disturbed by a sound holding reversing Patterson's conviction.15
60
Furthermore, as we indicated in Mullaney, 421 U.S., at 701-702, n. 28, 95 S.Ct. at 1890-1891, even as to those factors upon which the prosecution must bear the burden of persuasion, the State retains an important procedural device to avoid jury confusion and prevent the prosecution from being unduly hampered. The State normally may shift to the defendant the burden of production,16 that is, the burden of going forward with sufficient evidence "to justify (a reasonable) doubt upon the issue."17 ALI, Model Penal Code § 1.13, Comment, p. 110 (Tent. Draft No. 4, 1955). If the defendant's evidence does not cross this threshold, the issue be it malice, extreme emotional disturbance, self-defense, or whatever will not be submitted to the jury.18 See Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965); Stevenson v. United States, 162 U.S. 313, 314-316, 16 S.Ct. 839, 840, 40 L.Ed. 980 (1896). Ever since this Court's decision in Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), federal prosecutors have borne the burden of persuasion with respect to factors like insanity, self-defense, and malice or provocation, once the defendant has carried this burden of production. See, e. g., Blake v. United States, 407 F.2d 908, 910-911 (CA5 1969) (en banc) (insanity); Frank v. United States, 42 F.2d 623, 629 (CA9 1930) (self-defense); United States v. Alexander, 152 U.S.App.D.C. 371, 389-395, 471 F.2d 923, 941-947, cert. denied sub nom. Murdock v. United States, 409 U.S. 1044, 93 S.Ct. 541, 34 L.Ed.2d 494 (1972) (provocation). I know of no indication that this practice has proven a noticeable handicap to effective law enforcement.19
61
To be sure, there will be many instances when the Winship/Mullaney test as I perceive it will be more difficult to apply than the Court's formula. Where I see the need for a careful and discriminating review of history, the Court finds a brightline standard that can be applied with a quick glance at the face of the statute. But this facile test invites tinkering with the procedural safeguards of the presumption of innocence, an invitation to disregard the principles of Winship that I would not extend.
1
References herein to the charge of "murder" under New York law are to this section. Cf. N.Y.Penal Law § 125.27 (McKinney 1975) (murder in the first degree).
2
Section 125.25 provides in relevant part:
"A person is guilty of murder in the second degree when:
"1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:
"(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime."
3
Section 125.20(2), N.Y. Penal Law § 125.20(2), (McKinney 1975), provides:
"A person is guilty of manslaughter in the first degree when:
"2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision."
4
Appellant also contended at trial that the shooting was accidental and that therefore he had no intent to kill Northrup. It is here undisputed, however, that the prosecution proved beyond a reasonable doubt that the killing was intentional.
5
The trial court's instructions to the jury focused emphatically and repeatedly on the prosecution's burden of proving guilt beyond a reasonable doubt.
"The burden of proving the guilt of a defendant beyond a reasonable doubt rests at all times upon the prosecution. A defendant is never obliged to prove his innocence.
"Before you can find a defendant guilty, you must be convinced that each and every element of the crime charged and his guilt has been established to your satisfaction by reliable and credible evidence beyond a reasonable doubt." App. A48-A49.
6
In Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306, we hold, as did the New York Court of Appeals in the present case, that Mullaney is to be applied retroactively. The fact that Patterson was tried prior to our decision in Mullaney does not insulate this case from the principles of Mullaney.
7
See also F. Wharton, A Treatise on the Law of Evidence in Criminal Issues 240-269 (9th ed. 1884); H. Kelley, Criminal Law and Practice 124-128, 131 (1876); Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L.J. 880, 882-884 (1968); Note, Affirmative Defenses After Mullaney v. Wilbur : New York's Extreme Emotional Disturbance, 43 Brooklyn L.Rev. 171, 190 (1976).
8
York, which relied on American authorities dating back to the early 1800's, confirmed that the common-law and prevailing American view was that the burden was on the defendant to prove provocation. York is said to have governed a half century of American burden-of-proof decisions in provocation and self-defense cases. Fletcher, supra, n.7, at 903-904.
9
Meanwhile, the Court had explained that although the State could go too far in shifting the burden of proof to a defendant in a criminal case, the Due Process Clause did not invalidate every instance of burdening the defendant with proving an exculpatory fact. In Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934), a state law made it illegal for an alien ineligible for citizenship to own or possess land. Initially, in a summary dismissal for want of a substantial federal question, Morrison v. California, 288 U.S. 591, 53 S.Ct. 401, 77 L.Ed. 970 (1933), the Court held that it did not violate the Due Process Clause for the State to place on the defendant "the burden of proving citizenship as a defense," 291 U.S., at 88, 54 S.Ct. at 284, once the State's evidence had shown that the defendant possessed the land and was a member of a race barred from citizenship. In the later Morrison case the Court reiterated and approved its previous summary holding, even though it struck down more drastic burden shifting permitted under another section of the statute. The Court said that its earlier per curiam ruling "was not novel":
"The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. Cf. Wigmore, Evidence, Vol. 5, §§ 2486, 2512 and cases cited. Special reasons are at hand to make the change permissible when citizenship vel non is the issue to be determined. Citizenship is a privilege not due of common right. One who lays claim to it as his, and does this in justification or excuse of an act otherwise illegal, may fairly be called upon to prove his title good." Id., at 88-89, 54 S.Ct., at 284.
In ruling that in the other section of the statute then at issue the State had gone too far, the Court said:
"For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance (Yee Hem v. United States, (268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925)); Casey v. United States, (276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632 (1928))), or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception. Greenleaf, Evidence, Vol. 1, § 79." Id., at 90-91, 54 S.Ct., at 285.
The Court added that, of course, the possible situations were too variable and that too much depended on distinctions of degree to crowd them all into a simple formula. A sharper definition was to await specific cases. Of course, if the Morrison cases are understood as approving shifting to the defendant the burden of disproving a fact necessary to constitute the crime, the result in the first Morrison case could not coexist with In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney.
10
The State of New York is not alone in this result:
"Since the Model Penal Code was completed in 1962, some 22 states have codified and reformed their criminal laws. At least 12 of these jurisdictions have used the concept of an 'affirmative defense' and have defined that phrase to require that the defendant prove the existence of an 'affirmative defense' by a preponderance of the evidence. Additionally, at least six proposed state codes and each of the four successive versions of a revised federal code use the same procedural device. Finally, many jurisdictions that do not generally employ this concept of 'affirmative defense' nevertheless shift the burden of proof to the defendant on particular issues." Low & Jeffries, DICTA: Constitutionalizing the Criminal Law ?, 29 Va.Law Weekly, No. 18, p. 1 (1977) (footnotes omitted).
Even so, the trend over the years appears to have been to require the prosecution to disprove affirmative defenses beyond a reasonable doubt. See W. LaFave & A. Scott, Criminal Law § 8, p. 50 (1972); C. McCormick, Evidence § 341, pp. 800-802 (2d ed. 1972). The split among the various jurisdictions varies for any given defense. Thus, 22 jurisdictions place the burden of proving the affirmative defense of insanity on the defendant, while 28 jurisdictions place the burden of disproving insanity on the prosecution. Note, Constitutional Limitations on Allocating the Burden of Proof of Insanity to the Defendant in Murder Cases, 56 56 B.U.L.Rev. 499, 503-505 (1976).
11
The drafters of the Model Penal Code would, as a matter of policy, place the burden of proving the nonexistence of most affirmative defenses, including the defense involved in this case, on the prosecution once the defendant has come forward with some evidence that the defense is present. The drafters recognize the need for flexibility, however, and would, in "some exceptional situations," place the burden of persuasion on the accused.
"Characteristically these are situations where the defense does not obtain at all under existing law and the Code seeks to introduce a mitigation. Resistance to the mitigation, based upon the prosecution's difficulty in obtaining evidence, ought to be lowered if the burden of persuasion is imposed on the defendant. Where that difficulty appears genuine and there is something to be said against allowing the defense at all, we consider it defensible to shift the burden in this way." ALI Model Penal Code § 1.13, Comment, p. 113 (Tent. Draft No. 4, 1955).
Other writers have recognized the need for flexibility in allocating the burden of proof in order to enhance the potential for liberal legislative reforms. See, e. g., Low & Jeffries, supra, n. 10; Christie & Pye, Presumptions and Assumptions in the Criminal Law: Another View, 1970 Duke L.J. 919, 933-938. See also Allen, Mullaney v. Wilbur, the Supreme Court, and the Substantive Criminal Law An Examination of the Limits of Legitimate Intervention, 55 Texas L.Rev. 269 (1977).
12
Whenever due process guarantees are dependent upon the law as defined by the legislative branches, some consideration must be given to the possibility that legislative discretion may be abused to the detriment of the individual. See Mullaney v. Wilbur, 421 U.S., at 698-699, 95 S.Ct. at 1889. The applicability of the reasonable-doubt standard, however, has always been dependent on how a State defines the offense that is charged in any given case; yet there has been no great rush by the States to shift the burden of disproving traditional elements of the criminal offenses to the accused.
13
As Chief Judge Breitel cogently stated in concurring in the judgment and opinion below:
"A preliminary caveat is indicated. It would be an abuse of affirmative defenses, as it would be of presumptions in the criminal law, if the purpose or effect were to unhinge the procedural presumption of innocence which historically and constitutionally shields one charged with crime. Indeed, a by-product of such abuse might well be also to undermine the privilege against self-incrimination by in effect forcing a defendant in a criminal action to testify in his own behalf.
"Nevertheless, although one should guard against such abuses, it may be misguided, out of excess caution, to forestall or discourage the use of affirmative defenses, where defendant may have the burden of proof but no greater than by a preponderance of the evidence. In the absence of affirmative defenses the impulse to legislators, especially in periods of concern about the rise of crime, would be to define particular crimes in unqualifiedly general terms, and leave only to sentence the adjustment between offenses of lesser and greater degree. In times when there is also
a retrogressive impulse in legislation to restrain courts by mandatory sentences, the evil would be compounded.
"The affirmative defense, intelligently used, permits the gradation of offenses at the earlier stages of prosecution and certainly at the trial, and thus offers the opportunity to a defendant to allege or prove, if he can, the distinction between the offense charged and the mitigating circumstances which should ameliorate the degree or kind of offense. The instant homicide case is a good example. Absent the affirmative defense, the crime of murder or manslaughter could legislatively be defined simply to require an intent to kill, unaffected by the spontaneity with which that intent is formed or the provocative or mitigating circumstances which should legally or morally lower the grade of crime. The placing of the burden of proof on the defense, with a lower threshold, however, is fair because of defendant's knowledge or access to the evidence other than his own on the issue. To require the prosecution to negative the 'element' of mitigating circumstances is generally unfair, especially since the conclusion that the negative of the circumstances is necessarily a product of definitional and therefore circular reasoning, and is easily avoided by the likely legislative practice mentioned earlier.
"In sum, the appropriate use of affirmative defenses enlarges the ameliorative aspects of a statutory scheme for the punishment of crime, rather than the other way around a shift from primitive mechanical classifications based on the bare antisocial act and its consequences, rather than on the nature of the offender and the conditions which produce some degree of excuse for his conduct, the mark of an advanced criminology." 39 N.Y.2d 288, 305-307, 383 N.Y.S.2d 573, 583-585, 347 N.E.2d 898, 909-910 (1976).
14
The defendant in Mullaney was convicted under Me.Rev.Stat.Ann., Tit. 17, § 2651 (1964), which provided:
"Whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder and shall be punished by imprisonment for life."
15
There is some language in Mullaney that has been understood as perhaps construing the Due Process Clause to require the prosecution to prove beyond a reasonable doubt any fact affecting "the degree of criminal culpability." See, e. g., Note, Affirmative Defenses After Mullaney v. Wilbur: New York's Extreme Emotional Disturbance, 43 Brooklyn L.Rev. 171 (1976); Note, Affirmative Defenses in Ohio After Mullaney v. Wilbur, 36 Ohio St.L.J. 828 (1975); Comment, Unburdening the Criminal Defendant: Mullaney v. Wilbur and the Reasonable Doubt Standard, 11 Harv.Civ.Rights-Civ.Lib.L.Rev. 390 (1976). It is said that such a rule would deprive legislatures of any discretion whatsoever in allocating the burden of proof, the practical effect of which might be to undermine legislative reform of our criminal justice system. See Part II, supra; Low & Jeffries, supra, n. 10. Carried to its logical extreme, such a reading of Mullaney might also, for example, discourage Congress from enacting pending legislation to change the felony-murder rule by permitting the accused to prove by a preponderance of the evidence the affirmative defense that the homicide committed was neither a necessary nor a reasonably foreseeable consequence of the underlying felony. See Senate bill S. 1, 94th Cong., 1st Sess., 118 (1975). The Court did not intend Mullaney to have such far-reaching effect.
1
There are also other forms of manslaughter set forth in the New York statute, not all of which conform to the ALI recommendations. Those provisions are not implicated in this case.
2
The 1967 provisions marked a considerable departure from the prior New York statutes defining manslaughter. As we noted in Mullaney v. Wilbur, 421 U.S. 684, 694, 95 S.Ct. 1881, 1887, 44 L.Ed.2d 508 (1975), the grounds for distinguishing murder from manslaughter developed along two distinct paths in this country. Prior to the 1967 change New York, with a handful of other jurisdictions, see ALI, Model Penal Code, § 201.3, Comment, p. 43 (Tent. Draft No. 9, 1959), pursued the first path: to establish malice (and hence to convict of murder) the prosecution bore the burden of persuasion, being required to establish a substantive element of intent that the defendant possessed "a design to effect death." See 39 N.Y.2d 288, 299, 383 N.Y.S.2d 573, 580, 347 N.E.2d 898, 905 (1976) (case below); Stokes v. People, 53 N.Y. 164 (1873). Maine, in contrast, followed the second path, marked out most prominently by Chief Justice Shaw's opinion in Commonwealth v. York, 50 Mass. 93 (1845): malice was presumed unless the defendant established that he acted in the heat of passion.
This difference between the old New York practice and the York approach was substantial as noted by the Court of Appeals below. But that court placed entirely too much weight on this distinction as a basis for concluding that Mullaney's holding was inapplicable. The statute at issue here is the 1967 Revised Penal Law, not the earlier formulation. In 1967, New York broke from the first branch and aligned itself with York, although casting its statute in more modern language. No matter how extensive the differences between the pre-1967 practice and the Maine statutes found deficient in Mullaney, this case must be decided on the basis of current New York law.
3
The Court holds that the prosecution must prove beyond a reasonable doubt "all of the elements included in the definition of the offense of which the defendant is charged." Ante, at 210 (emphasis added).
4
The Court explains: "Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause." Ante, at 215. I must point out, however, that this is a less than faithful reading of Maine law. The Maine Supreme Judicial Court, rejecting a recent holding to the contrary by the Court of Appeals for the First Circuit, emphatically insisted that the words "malice aforethought" appearing in the Maine statute did not connote a "fact" to be "presumed" in the sense the latter terms are customarily used:
"As we read the (First Circuit) case, the Federal Court was of the impression that (murder) includes, in addition to an intentional and unlawful killing, the independent element of 'malice aforethought.' Such is not, and never has been, the law in Maine. As we said in (State v. Rollins, 295 A.2d 914, 920 (1972) ):
" '(T)he "malice" (said to be "presumed") is not a designation of any subjective state of mind existing as a fact. Similarly, the "presumption" (of "malice") arising from the fact of an intentional killing is not a designation of any probative relationship between the fact of "intention" relating to the killing and any further facts . . . .' " State v. Lafferty, 309 A.2d 647, 664 (1973) (emphasis in original).
See id., at 672 (concurring opinion); Mullaney v. Wilbur, 421 U.S., at 689, 699, 95 S.Ct. at 1884, 1889.
5
"The crime of murder is defined by the (New York) statute . . . as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime. . . .
". . . (The) affirmative defense (of extreme emotional disturbance) . . . does not serve to negative any facts of the crime which the State is to prove in order to convict of murder." Ante, at 205-206; 206-207.
6
In Mullaney we made it clear that Winship is not "limited to a State's definition of the elements of a crime." 421 U.S., at 699 n.24, 95 S.Ct., at 1890.
7
Although the Court never says so explicitly, its new standards appear to be designed for application to the language of a criminal statute on its face, regardless of how the state court construes the statute. The Court, in explaining Mullaney, persistently states that in Maine malice "was part of the definition of that crime (murder)," ante, at 216, even though the Maine Supreme Judicial Court, construing its own statute, had ruled squarely to the contrary. See n.4, supra. In the usual case it is well established that an authoritative construction by the State's highest court "puts (appropriate) words in the statute as definitely as if it had been so amended by the legislature." Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840 (1948). See Mullaney, supra, 421 U.S. at 690-691, 95 S.Ct. at 1885; Hebert v. Louisiana, 272 U.S. 312, 316-317, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926); Murdock v. City of Memphis, 20 Wall. 590, 635, 22 L.Ed. 429 (1875). Why an apparent exception should be engrafted on that doctrine today goes unexplained.
The result, under the Court's holding, is that only the legislature can remedy any defects that come to light as a result of the Court's decision. No matter how clear the legislative intent that defendants bear the burden of persuasion on an issue an ultimate result the Court approves state courts may not effectuate that intent until the right verbal formula appears in the statute book.
8
For example, a state statute could pass muster under the only solid standard that appears in the Court's opinion if it defined murder as mere physical contact between the defendant and the victim leading to the victim's death, but then set up an affirmative defense leaving it to the defendant to prove that he acted without culpable mens rea. The State, in other words, could be relieved altogether of responsibility for proving anything regarding the defendant's state of mind, provided only that the fact of the statute meets the Court's drafting formulas.
To be sure, it is unlikely that legislatures will rewrite their criminal laws in this extreme form. The Court seems to think this likelihood of restraint is an added reason for limiting review largely to formalistic examination. Ante, at 211. But it is completely foreign to this Court's responsibility for constitutional adjudication to limit the scope of judicial review because of the expectation however reasonable that legislative bodies will exercise appropriate restraint.
9
I have no doubt that the Court would find some way to strike down a formalistically correct statute as egregious as the one hypothesized in n.8, supra. Cf. Morissette v. United States, 342 U.S. 246, 250-263, 72 S.Ct. 240, 243-249, 96 L.Ed. 288 (1952). But today's ruling suggests no principled basis for concluding that such a statute falls outside the "obvious" constitutional limits the Court invokes.
10
Cf. Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949):
"Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property."
11
As the Court acknowledges, ante, at 207-208, n.10, the clear trend over the years has been to require the prosecutor to carry the burden of persuasion with respect to all important factors in a criminal case, including traditional affirmative defenses. See W. LaFave & A. Scott, Criminal Law 50 (1972); C. McCormick, Evidence § 341, pp. 800-802 (1972).
12
See Low & Jeffries, DICTA: Constitutionalizing the Criminal Law?, 29 Va. Law Weekly, No. 18, p. 1 (1977); Tushnet, Constitutional Limitation of Substantive Criminal Law: An Examination of the Meaning of Mullaney v. Wilbur, 55 B.U.L.Rev. 775 (1975).
13
Perhaps under other principles of due process jurisprudence, certain factors are so fundamental that a State could not, as a substantive matter, refrain from recognizing them so long as it chooses to punish given conduct as a crime. Cf. Bailey v. Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191 (1911) (holding a criminal-law presumption invalid procedurally and also finding a substantive defect under the Thirteenth Amendment and the Anti-Peonage Act). But substantive limits were not at issue in Winship or Mullaney, and they are not at issue here.
Even if there are no constitutional limits preventing the State, for example, from treating all homicides as murders punishable equally regardless of mitigating factors like heat of passion or extreme emotional disturbance, the Winship/Mullaney rule still plays an important role. The State is then obliged to make its choices concerning the substantive content of its criminal laws with full awareness of the consequences, unable to mask substantive policy choices by shifts in the burden of persuasion. See Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L.J. 880, 894 (1968) ("The burden of persuasion has proved to be a subtle, low-visibility tool for adjusting the interests of competing classes of litigants"). The political check on potentially harsh legislative action is then more likely to operate. Cf. Tot v. United States, 319 U.S. 463, 472, 63 S.Ct. 1241, 1247, 87 L.Ed. 1519 (1943); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).
Romano involved a challenge to a federal statute that authorized the jury to infer possession, custody, and control of an illegal still from mere presence at the site. The Government contended that the statute should be sustained since it was merely Congress' way of broadening the substantive provisions in order to make a crime of mere presence. The Court rejected this argument, serving notice that Congress could not work a substantive change of that magnitude in such a disguised form. Id., at 144, 86 S.Ct. at 283. See Ashford & Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165, 177-178 (1969); Osenbaugh, The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark.L.Rev. 429, 461 (1976).
14
Numerous examples of such defenses are available: New York subjects an armed robber to lesser punishment than he would otherwise receive if he proves by a preponderance of the evidence that the gun he used was unloaded or inoperative. N.Y. Penal Law § 160.15 (McKinney 1975). A number of States have ameliorated the usual operation of statutes punishing statutory rape, recognizing a defense if the defendant shows that he reasonably believed his partner was of age. E. g., Ky.Rev.Stat.Ann. §§ 500.070, 510.030 (1975); Wash.Rev.Code Ann. § 9.79.160(2) (Supp.1975). Formerly the age of the minor was a strict-liability element of the crime. The Model Penal Code also employs such a shift in the burden of persuasion for a limited number of defenses. For example, a corporation can escape conviction of an offense if it proves by a preponderance of the evidence that the responsible supervising officer exercised due diligence to prevent the commission of the offense. § 2.07(5) (Proposed Official Draft 1962).
15
A number of commentators have suggested that the Constitution permits the States some latitude in adjusting the burden of persuasion with respect to new ameliorative affirmative defenses that result from legislative compromise, but not with respect to other factors. See, e. g., W. LaFave & A. Scott, supra, n. 11, at 49; 1 National Commission on Reform of Federal Criminal Laws, Working Papers 18-19 (1970); ALI, Model Penal Code § 1.13, Comment, p. 113 (Tent. Draft No. 4, 1955) (quoted, ante, at 209 n. 11); Note, 51 Wash. L.Rev. 953, 964 (1976); Osenbaugh, supra, n. 13, at 459-467. Cf. Fletcher, supra, n. 13, at 928-929.
16
There are outer limits on shifting the burden of production to a defendant, limits articulated in a long line of cases in this Court passing on the validity of presumptions. Most important are the "rational connection" requirement of Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed. 78 (1910), and Bailey v. Alabama, supra, 219 U.S., at 238-239, 31 S.Ct. at 150, and also the "comparative convenience" criterion of Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934). See also, e. g., Tot v. United States, supra, 319 U.S., at 467-468, 63 S.Ct. at 1244; Speiser v. Randall, 357 U.S. 513, 523-524, 78 S.Ct. 1322, 1340-1341, 2 L.Ed.2d 1460 (1958); Leary v. United States, 395 U.S. 6, 33-34, 89 S.Ct. 1532, 1546, 123 L.Ed.2d 57 (1969); Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2361, 37 L.Ed.2d 380 (1973). Caution is appropriate, however, in generalizing about the application of any of these cases to a given procedural device, since the term "presumption" covers a broad range of procedural mechanisms having significantly different consequences for the defendant. See C. McCormick, n. 11, supra, 802-806; Evans v. State, 28 Md.App. 640, 675-678, 349 A.2d 300, 324-325 (1975).
17
This does not mean that the defendant must introduce evidence in every case. In some instances the prosecution's case may contain sufficient evidence in support of the defendant's position to generate a jury issue.
18
On many occasions this Court has sustained a trial court's refusal to submit an issue to the jury in a criminal case when the defendant failed to meet his burden of production. See, e. g., Sparf v. United States, 156 U.S. 51, 63-64, 15 S.Ct. 273, 277-278, 39 L.Ed. 343 (1895); Andersen v. United States, 170 U.S. 481, 510-511, 18 S.Ct. 689, 696, 42 L.Ed. 1116 (1898); Battle v. United States, 209 U.S. 36, 38, 28 S.Ct. 422, 423, 52 L.Ed. 670 (1908). Cf. Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458 (1943).
19
Dean McCormick emphasized that the burden of production is "a critical and important mechanism in a jury trial." In his view, "this mechanism has far more influence upon the final outcome of cases than does the burden of persuasion, which has become very largely a matter of the technique of the wording of instructions to juries." C. McCormick, Evidence § 307, pp. 638-639, and n. 2 (1st ed. 1954). Cf. Fletcher, supra, n. 13, at 930.
| 34
|
432 U.S. 438
97 S.Ct. 2366
53 L.Ed.2d 464
Frank S. BEAL, etc., et al., Petitioners,v.Ann DOE et al.
No. 75-554.
Argued Jan. 11, 1977.
Decided June 20, 1977.
Syllabus
Title XIX of the Social Security Act establishes a Medical Assistance (Medicaid) program, under which participating States financially assist qualified individuals in five general categories of medical treatment, state plans being required to establish "reasonable standards . . . for determining . . . the extent of medical assistance under the plan which are consistent with" Title XIX's objectives. Respondents, who are eligible for medical assistance under Pennsylvania's Medicaid plan and who were denied financial assistance for desired nontherapeutic abortions pursuant to state regulations limiting such assistance to abortions certified by physicians as medically necessary, brought this action seeking injunctive and declaratory relief, contending that the certification requirement contravened Title XIX and denied them equal protection of the laws. A three-judge District Court decided the statutory issue against respondents but the constitutional issue partially in their favor. The Court of Appeals, not reaching the constitutional question, reversed on the statutory issue, holding that Title XIX prohibits participating States from requiring a medical-necessity certificate as a funding condition during the first two trimesters of pregnancy. Held:
1. Title XIX of the Social Security Act does not require the funding of nontherapeutic abortions as a condition of participation in the Medicaid program established by that Act. Pp. 443-447.
(a) Nothing in the language of Title XIX requires a participating State to fund every medical procedure falling within the delineated categories of medical care. Each State is given broad discretion to determine the extent of medical assistance that is "reasonable" and "consistent with the objectives" of Title XIX. Pp. 443-444.
(b) Although serious statutory questions might be presented if state Medicaid plans did not cover necessary medical treatment, it is not inconsistent with the Act's goals to refuse to fund unnecessary (though perhaps desirable) medical services. Pp. 444-445.
(c) The State has a strong interest in encouraging normal childbirth that exists throughout the course of a woman's pregnancy, and nothing in Title XIX suggests that it is unreasonable for a State to further that interest. It therefore will not be presumed that Congress intended to condition a State's participation in Medicaid on its willingness to undercut that interest by subsidizing the costs of nontherapeutic abortions. Pp. 445-446.
(d) When Congress passed Title XIX nontherapeutic abortions were unlawful in most States, a fact that undermines the contention that Congress intended to require rather than permit participating States to fund such abortions. Moreover, the Department of Health, Education, and Welfare, the agency that administers Title XIX, takes the position that the Title allows, but does not mandate, funding for such abortions. P. 447.
2. Whether or not that aspect of Pennsylvania's program under which financial assistance is not provided for medically necessary abortions unless two physicians in addition to the attending physician have examined the patient and have concurred in writing as to the medical necessity of the abortion interferes with the attending physician's medical judgment in a manner not contemplated by Congress should be considered on remand. P. 448.
3 Cir., 523 F.2d 611, vacated and remanded.
Norman J. Watkins, Harrisburg, Pa., for petitioners.
Judd F. Crosby, Pittsburgh, Pa., for respondents.
Mr. Justice POWELL, delivered the opinion of the Court.
1
The issue in this case is whether Title XIX of the Social Security Act, as added, 79 Stat. 343, and amended, 42 U.S.C. § 1396 et seq. (1970 ed. and Supp. V), requires States that participate in the Medical Assistance (Medicaid) program to fund the cost of nontherapeutic abortions.
2
* Title XIX establishes the Medicaid program under which participating States may provide federally funded medical assistance to needy persons.1 The statute requires participating States to provide qualified individuals with financial assistance in five general categories of medical treatment.2 42 U.S.C. §§ 1396a(a)(13)(B) (1970 ed., Supp. V), 1396d(a)(1)-(5) (1970 ed. and Supp. V). Although Title XIX does not require States to provide funding for all medical treatment falling within the five general categories, it does require that state Medicaid plans establish "reasonable standards . . . for determining . . . the extent of medical assistance under the plan which . . . are consistent with the objectives of (Title XIX)." 42 U.S.C. § 1396a(a)(17) (1970 ed., Supp. V).
3
Respondents, who are eligible for medical assistance under Pennsylvania's federally approved Medicaid plan, were denied financial assistance for desired abortions pursuant to Pennsylvania regulations limiting such assistance to those abortions that are certified by physicians as medically necessary.3 When respondents' applications for Medicaid assistance were denied because of their failure to furnish the required certificates, they filed this action in the United States District Court for the Western District of Pennsylvania seeking declaratory and injunctive relief. Their complaint alleged that Pennsylvania's requirement of a certificate of medical necessity contravened relevant provisions of Title XIX and denied them equal protection of the laws in violation of the Fourteenth Amendment.
4
(1) A three-judge District Court was convened pursuant to 28 U.S.C. § 2281. After resolving the statutory issue against respondents, the District Court held that Pennsylvania's medical-necessity restriction denied respondents equal protection of the laws. Doe v. Wohlgemuth, 376 F.Supp. 173 (1974).4 Accordingly, the court granted a declaratory judgment that the Pennsylvania requirement was unconstitutional as applied during the first trimester. The United States Court of Appeals for the Third Circuit, sitting en banc, reversed on the statutory issue, holding that Title XIX prohibits participating States from requiring a physician's certificate of medical necessity as a condition for funding during both the first and second trimesters of pregnancy.5 523 F.2d 611 (1975). The Court of Appeals therefore did not reach the constitutional issue.6
5
We granted certiorari to resolve a conflict among the federal courts as to the requirements of Title XIX.7 428 U.S. 909, 96 S.Ct. 3220, 49 L.Ed.2d 1216 (1976).
II
6
(2) The only question before us is one of statutory construction: whether Title XIX requires Pennsylvania to fund under its Medicaid program the cost of all abortions that are permissible under state law. "The starting point in every case involving construction of a statute is the language itself." 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). Title XIX makes no reference to abortions, or, for that matter, to any other particular medical procedure. Instead, the statute is cast in terms that require participating States to provide financial assistance with respect to five broad categories of medical treatment. See n. 2, supra. But nothing in the statute suggests that participating States are required to fund every medical procedure that falls within the delineated categories of medical care. Indeed, the statute expressly provides:
7
"A State plan for medical assistance must . . . include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which . . . are consistent with the objectives of this (Title) . . . ." 42 U.S.C. § 1396a(a)(17) (1970 ed., Supp. V).
8
This language confers broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be "reasonable" and "consistent with the objectives" of the Act.8
9
Pennsylvania's regulation comports fully with Title XIX's broadly stated primary objective to enable each State, as far as practicable, to furnish medical assistance to individuals whose income and resources are insufficient to meet the costs of necessary medical services. See 42 U.S.C. §§ 1396, 1396a(10)(C) (1970 ed., Supp. V). Although serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to refuse to fund unnecessary though perhaps desirable medical services.
10
(3) The thrust of respondents' argument is that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable on both economic and health grounds.9 The economic argument is grounded on the view that abortion is generally a less expensive medical procedure than childbirth. Since a pregnant woman normally will either have an abortion or carry her child full term, a State that elects not to fund nontherapeutic abortions will eventually be confronted with the greater expenses associated with childbirth. The corresponding health argument is based on the view that an early abortion poses less of a risk to the woman's health than childbirth. Consequently, respondents argue, the economic and health considerations that ordinarily support the reasonableness of state limitations on financing of unnecessary medical services are not applicable to pregnancy.
11
Accepting respondents' assumptions as accurate, we do not agree that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable under Title XIX. As we acknowledged in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the State has a valid and important interest in encouraging childbirth. We expressly recognized in Roe the "important and legitimate interest (of the State) . . . in protecting the potentiality of human life." Id., at 162, 93 S.Ct., at 731. That interest alone does not, at least until approximately the third trimester, become sufficiently compelling to justify unduly burdensome state interference with the woman's constitutionally protected privacy interest. But it is a significant state interest existing throughout the course of the woman's pregnancy. Respondents point to nothing in either the language or the legislative history of Title XIX that suggests that it is unreasonable for a participating State to further this unquestionably strong and legitimate interest in encouraging normal childbirth.10 Absent such a showing, we will not presume that Congress intended to condition a State's participation in the Medicaid program on its willingness to undercut this important interest by subsidizing the costs of nontherapeutic abortions.11
12
Our interpretation of the statute is reinforced by two other relevant considerations. First, when Congress passed Title XIX in 1965, nontherapeutic abortions were unlawful in most States.12 In view of the then-prevailing state law, the contention that Congress intended to require rather than permit participating States to fund nontherapeutic abortions requires far more convincing proof than respondents have offered. Second, the Department of Health, Education, and Welfare, the agency charged with the administration of this complicated statute,13 takes the position that Title XIX allows but does not mandate funding for such abortions. "(W)e must be mindful that 'the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong . . .' " New York Department of Social Services v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2516-2517, 37 L.Ed.2d 688 (1973), quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969). Here, such indications are completely absent.
13
We therefore hold that Pennsylvania's refusal to extend Medicaid coverage to nontherapeutic abortions is not inconsistent with Title XIX.14 We made clear, however, that the federal statute leaves a State free to provide such coverage if it so desires.15
III
14
(4) There is one feature of the Pennsylvania Medicaid program, not addressed by the Court of Appeals, that may conflict with Title XIX. Under the Pennsylvania program, financial assistance is not provided for medically necessary abortions unless two physicians in addition to the attending physician have examined the patient and have concurred in writing that the abortion is medically necessary. See n. 3, supra. On this record, we are unable to determine the precise role played by these two additional physicians, and consequently we are unable to ascertain whether this requirement interferes with the attending physician's medical judgment in a manner not contemplated by the Congress. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for consideration of this requirement.
15
It is so ordered.
16
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice BLACKMUN join, dissenting.
17
The Court holds that the "necessary medical services" which Pennsylvania must fund for individuals eligible for Medicaid do not include services connected with elective abortions. I dissent.
18
Though the question presented by this case is one of statutory interpretation, a difficult constitutional question would be raised where Title XIX of the Social Security Act, as amended, 42 U.S.C. § 1396 et seq. (1970 ed. and Supp. V), is read not to require funding of elective abortions. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Since the Court should "first ascertain whether a construction of the statute is fairly possible by which the (constitutional) question may be avoided," Ashwander v. TVA, 297 U.S. 288, 341, 348, 56 S.Ct. 466, 480, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); see Westby v. Doe, 420 U.S. 968, 95 S.Ct. 1385, 43 L.Ed.2d 648 (1975), Title XIX, in my view, read fairly in light of the principle of avoidance of unnecessary constitutional decisions, requires agreement with the Court of Appeals that the legislative history of Title XIX and our abortion cases compel the conclusion that elective abortions constitute medically necessary treatment for the condition of pregnancy. I would therefore find that Title XIX requires that Pennsylvania pay the costs of elective abortions for women who are eligible participants in the Medicaid program.
19
Pregnancy is unquestionably a condition requiring medical services. See Roe v. Norton, 380 F.Supp. 726, 729 (D.C.Conn.1974); Klein v. Nassau County Medical Center, 347 F.Supp. 496, 500 (DC EDNY 1972), vacated for further consideration (in light of Roe v. Wade and Doe v. Bolton), 412 U.S. 925, 93 S.Ct. 2747, 37 L.Ed.2d 152 (1973). Treatment for the condition may involve medical procedures for its termination, or medical procedures to bring the pregnancy to term, resulting in a live birth. "(A)bortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy . . . ." Roe v. Norton, 408 F.Supp. 660, 663 n. 3 (Conn.1975). The Medicaid statutes leave the decision as to choice among pregnancy procedures exclusively with the doctor and his patient, and make no provision whatever for intervention by the State in that decision. Section 1396a(a)(19) expressly imposes the obligation upon participating States to incorporate safeguards in their programs that assure medical "care and services will be provided, in a manner consistent with . . . the best interests of the recipients." And, significantly, the Senate Finance Committee Report on the Medicaid bill expressly stated that the "physician is to be the key figure in determining utilization of health services." S.Rep. No. 404, 89th Cong., 1st Sess., 46 (1965). Thus the very heart of the congressional scheme is that the physician and patient should have complete freedom to choose those medical procedures for a given condition which are best suited to the needs of the patient.
20
The Court's original abortion decisions dovetail precisely with the congressional purpose under Medicaid to avoid interference with the decision of the woman and her physician. Roe v. Wade, supra, 410 U.S., at 163, 93 S.Ct., at 732, held that "(t)he attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated." And Doe v. Bolton, supra, 410 U.S., at 192, 93 S.Ct., at 747, held that "the medical judgment may be exercised in the light of all factors physical, emotional, psychological, familial, and the woman's age relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman."* Once medical treatment of some sort is necessary, Title XIX does not dictate what that treatment should be. In the face of Title XIX's emphasis upon the joint autonomy of the physician and his patient in the decision of how to treat the condition of pregnancy, it is beyond comprehension how treatment for therapeutic abortions and live births constitutes "necessary medical services" under Title XIX, but that for elective abortions does not.
21
If Pennsylvania is not obligated to fund medical services rendered in performing elective abortions because they are not "necessary" within the meaning of 42 U.S.C. § 1396 (1970 ed., Supp. V), it must follow that Pennsylvania also would not violate the statute if it refused to fund medical services for "therapeutic" abortions or live births. For if the availability of therapeutic abortions and live births makes elective abortions "unnecessary," the converse must also be true. This highlights the violence done the congressional mandate by today's decision. If the State must pay the costs of therapeutic abortions and of live birth as constituting medically necessary responses to the condition of pregnancy, it must, under the command of § 1396, also pay the costs of elective abortions; the procedures in each case constitute necessary medical treatment for the condition of pregnancy.
22
The 1972 family-planning amendment to the Act, 42 U.S.C. § 1396d(a)(4)(C) (1970 ed., Supp. V), buttresses my conclusion that the Court's construction frustrates the objectives of the Medicaid program. Section 1396(2) states that an explicit purpose of Medicaid is to assist eligible indigent recipients to "attain or retain capability for independence or self-care." The 1972 amendment furthered this objective by assisting those who "desire to control family size in order to enhance their capacity and ability to seek employment and better meet family needs." S.Rep.No. 92-1230, p. 297 (1972). Though far less than an ideal family-planning mechanism, elective abortions are one method for limiting family size and avoiding the financial and emotional problems that are the daily lot of the impoverished. See Special Subcommittee on Human Resources of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., Report of the Secretary of Health, Education, and Welfare Submitting Five-Year Plan for Family Planning Services and Population Research Programs 319 (Comm. Print 1971).
23
It is no answer that abortions were illegal in 1965 when Medicaid was enacted, and in 1972 when the family-planning amendment was adopted. Medicaid deals with general categories of medical services, not with specific procedures, and nothing in the statute even suggests that Medicaid is designed to assist in payment for only those medical services that were legally permissible in 1965 and 1972. I fully agree with the Court of Appeals statement:
24
"It is impossible to believe that in enacting Title XIX Congress intended to freeze the medical services available to recipients at those which were legal in 1965. Congress surely intended Medicaid to pay for drugs not legally marketable under the FDA's regulations in 1965 which are subsequently found to be marketable. We can see no reason why the same analysis should not apply to the Supreme Court's legalization of elective abortion in 1973." 523 F.2d 611, 622-623 (1975).
25
Nor is the administrative interpretation of the Department of Health, Education, and Welfare that funding of elective abortions is permissible but not mandatory dispositive of the construction of "necessary medical services." The principle of according weight to agency interpretation is inapplicable when a departmental interpretation, as here, is patently inconsistent with the controlling statute. Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505, 30 L.Ed.2d 448 (1971).
26
Finally, there is certainly no affirmative policy justification of the State that aids the Court's construction of "necessary medical services" as not including medical services rendered in performing elective abortions. The State cannot contend that it protects its fiscal interests in not funding elective abortions when it incurs far greater expense in paying for the more costly medical services performed in carrying pregnancies to term, and, after birth, paying the increased welfare bill incurred to support the mother and child. Nor can the State contend that it protects the mother's health by discouraging an abortion, for not only may Pennsylvania's exclusion force the pregnant woman to use of measures dangerous to her life and health but, as Roe v. Wade, 410 U.S., at 149, 93 S.Ct., at 725, concluded, elective abortions by competent licensed physicians are now "relatively safe" and the risks to women undergoing abortions by such means "appear to be as low as or lower than . . . for normal childbirth."
27
The Court's construction can only result as a practical matter in forcing penniless pregnant women to have children they would not have borne if the State had not weighted the scales to make their choice to have abortions substantially more onerous. Indeed, as the Court said only last Term: "For a doctor who cannot afford to work for nothing, and a woman who cannot afford to pay him, the State's refusal to fund an abortion is as effective an 'interdiction' of it as would ever be necessary." Singleton v. Wulff, 428 U.S. 106, 118-119, n. 7, 96 S.Ct. 2868, 2876, n. 7, 49 L.Ed.2d 826 (1976). The Court's construction thus makes a mockery of the congressional mandate that States provide "care and services . . . in a manner consistent with . . . the best interests of the recipients." We should respect the congressional plan by construing § 1396 as requiring States to pay the costs of the "necessary medical services" rendered in performing elective abortions, chosen by physicians and their women patients who participate in Medicaid as the appropriate treatment for their pregnancies.
28
The Court does not address the question whether the provision requiring the concurrence in writing of two physicians in addition to the attending physician conflicts with Title XIX. I would hold that the provision is invalid as clearly in conflict with Title XIX under my view of the paramount role played by the attending physician in the abortion decision, and in any event is constitutionally invalid under Doe v. Bolton, 410 U.S., at 198-200, 93 S.Ct., at 750-751.
29
I would affirm the judgment of the Court of Appeals.
1
Title XIX establishes two groups of needy persons: (1) the "categorically" needy, which includes needy persons with dependent children and the aged, blind, and disabled, 42 U.S.C. § 1396a(a)(10)(A) (1970 ed., Supp. V); and (2) the "medically" needy, which includes other needy persons, § 1396a(a)(10)(C) (1970 ed., Supp. V). Participating States are not required to extend Medicaid coverage to the "medically" needy, but Pennsylvania has chosen to do so.
2
The general categories of medical treatment enumerated are:
"(1) inpatient hospital services (other than services in an institution for tuberculosis or mental diseases);
"(2) outpatient hospital services;
"(3) other laboratory and X-ray services;
"(4)(A) skilled nursing facility services (other than services in an institution for tuberculosis or mental diseases) for individuals 21 years of age or older (B) effective July 1, 1969, such early and periodic screening and diagnosis of individuals who are eligible under the plan and are under the age of 21 to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary; and (C) family planning services and supplies furnished (directly or under arrangements with others) to individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies;
"(5) physicians' services furnished by a physician (as defined in section 1395x(r)(1) of this title), whether furnished in the office, the patient's home, a hospital, or a skilled nursing facility, or elsewhere." 42 U.S.C. § 1396d(a) (1970 ed. and Supp. V).
Participating States that elect to extend coverage to the "medically" needy, see n. 1, supra, have the option of providing somewhat different categories of medical services to those individuals. 42 U.S.C. § 1396a(a)(13)(C)(ii) (1970 ed., Supp. V).
3
An abortion is deemed medically necessary under the Pennsylvania Medicaid program if:
"(1) There is documented medical evidence that continuance of the pregnancy may threaten the health of the mother;
"(2) There is documented medical evidence that an infant may be born with incapacitating physical deformity or mental deficiency; or
"(3) There is documented medical evidence that continuance of a pregnancy resulting from legally established statutory or forcible rape or incest, may constitute a threat to the mental or physical health of a patient; and
"(4) Two other physicians chosen because of their recognized professional competency have examined the patient and have concurred in writing; and
"(5) The procedure is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals." Brief for Petitioners 4, citing 3 Pennsylvania Bulletin 2207, 2209 (Sept. 29, 1973).
In Doe v. Bolton, 410 U.S. 179, 192, 93 S.Ct. 739, 747, 35 L.Ed.2d 201 (1973), this Court indicated that "(w)hether 'an abortion is necessary' is a professional judgment that . . . may be exercised in the light of all factors physical, emotional, psychological, familial, and the woman's age relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment." We were informed during oral argument that the Pennsylvania definition of medical necessity is broad enough to encompass the factors specified in Bolton. Tr. of Oral Arg. 7-8.
The dissent of Mr. Justice BRENNAN emphasizes the "key" role of the physician within the Medicaid program, noting that "(t)he Medicaid statutes leave the decision as to the choice among pregnancy procedures exclusively with the doctor and his patient . . . ." Post, at 449-450. This is precisely what Pennsylvania has done. Its regulations provide for the funding of abortions upon certification of medical necessity, a determination that the physician is authorized to make on the basis of all relevant factors.
4
The District Court was of the view that the regulation creates "an unlawful distinction between indigent women who choose to carry their pregnancies to birth, and indigent women who choose to terminate their pregnancies by abortion." 376 F.Supp., at 191. In Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484, we today conclude that the Equal Protection Clause of the Fourteenth Amendment does not prevent a State from making the policy choice to fund costs incident to childbirth without providing similar funding for costs incident to nontherapeutic abortions.
5
Petitioners appealed the District Court's declaratory judgment to the Court of Appeals. Respondents cross-appealed from the denial of declaratory relief with respect to the second and third trimesters of pregnancy. Since respondents did not seek review of the District Court's denial of injunctive relief, the Court of Appeals had jurisdiction over the appeals. Gerstein v. Coe, 417 U.S. 279, 94 S.Ct. 2246, 41 L.Ed.2d 68 (1974).
6
As a result of the decision of the Court of Appeals, petitioners issued a Temporary Revised Policy on September 25, 1975. This interim policy allows financial assistance for abortions without regard to medical necessity. Brief for Petitioners 3 n. 3.
7
Two other Courts of Appeals have concluded that the federal statute does not require participating States to fund the cost of nontherapeutic abortions. Roe v. Norton, 522 F.2d 928 (CA2 1975); Roe v. Ferguson, 515 F.2d 279 (CA6 1975). See also, e. g., Doe v. Westby, 402 F.Supp. 140 (WDSD 1975) (three-judge court) (Title XIX requires funding of nontherapeutic abortions), appeal docketed, No. 75-813; Doe v. Stewart, Civ. No. 74-3197 (ED La., Jan. 26, 1976) (three-judge court) (Title XIX does not require funding of nontherapeutic abortions), appeal docketed, No. 75-6721.
8
Respondents concede that Title XIX "indicates that the states will have wide discretion in determining the extent of services to be provided." Brief for Respondents 9.
9
Respondents also contend that Pennsylvania's restriction on coverage is unreasonable within the meaning of Title XIX in that it interferes with the physician's professional judgment concerning appropriate treatment. With one possible exception addressed in Part III, infra, the Pennsylvania program does not interfere with the physician's medical judgment concerning his patient's needs. If a physician certifies that an abortion is medically necessary, see n. 3, supra, the medical expenses are covered under the Pennsylvania Medicaid program. If, however, the physician concludes that the abortion is not medically necessary, but indicates a willingness to perform the abortion at the patient's request, the expenses are not covered. The decision whether to fund the costs of the abortion thus depends solely on the physician's determination of medical necessity. Respondents point to nothing in the Pennsylvania Medicaid plan that indicates state interference with the physician's initial determination.
10
Respondents rely heavily on the fact that in amending Title XIX in 1972 to include "family planning services" within the five broad categories of required medical treatment, see n. 2, supra, Congress did not expressly exclude abortions as a covered service. Since Congress had expressly excluded abortions as a method of family planning services in prior legislation, see 42 U.S.C. § 300a-6, respondents conclude that the failure of Congress to exclude coverage of abortions in the 1972 amendments to Title XIX "strongly indicates" an intention to require coverage of abortions. This line of reasoning is flawed. The failure to exclude abortions from coverage indicates only that Congress intended to allow such coverage, not that such coverage is mandatory for nontherapeutic abortions.
11
The Court of Appeals concluded that Pennsylvania's regulations also violated the equality provisions of Title XIX requiring that an individual's medical assistance "shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual." 42 U.S.C. § 1396a(a)(10)(B) (1970 ed., Supp. V). See § 1396a(a)(10)(C) (1970 ed., Supp. V). According to the Court of Appeals, the Pennsylvania regulation "force(s) pregnant women to use the least voluntary method of treatment, while not imposing a similar requirement on other persons who qualify for aid." 523 F.2d 611, 619 (1975). We find the Pennsylvania regulation to be entirely consistent with the equality provisions of Title XIX. Pennsylvania has simply decided that there is reasonable justification for excluding from Medicaid coverage a particular medically unnecessary procedure nontherapeutic abortions.
12
At the time of our 1973 decision in Roe, some eight years after the enactment of Title XIX, at least 30 States had statutory prohibitions against nontherapeutic abortions. 410 U.S. 113, 118 n. 2, 93 S.Ct. 705, 709, 35 L.Ed.2d 147 (1973).
13
Federal funds are made available only to those States whose Medicaid plans have been approved by the Secretary of HEW. 42 U.S.C. § 1396 (1970 ed., Supp. V).
14
Congress by statute has expressly prohibited the use during fiscal year 1977 of federal Medicaid funds for abortions except when the life of the mother would be endangered if the fetus were carried to term. Departments of Labor and Health, Education, and Welfare Appropriation Act, 1977, § 209, Pub.L. 94-439, 90 Stat. 1434.
15
Our dissenting Brothers, in this case and in Maher v. Roe, 432 U.S. 464, 482, 97 S.Ct. 2376, 2386, 53 L.Ed.2d 484, express in vivid terms their anguish over the perceived impact of today's decisions on indigent pregnant women who prefer abortion to carrying the fetus to childbirth. We think our Brothers misconceive the issues before us, as well as the role of the judiciary.
In these cases we have held merely that (i) the provisions of the Social Security Act do not require a State, as a condition of participation, to include the funding of elective abortions in its Medicaid program; and (ii) the Equal Protection Clause does not require a State that elects to fund expenses incident to childbirth also to provide funding for elective abortions. But we leave entirely free both the Federal Government and the States, through the normal processes of democracy, to provide the desired funding. The issues present policy decisions of the widest concern. They should be resolved by the representatives of the people, not by this Court.
*
The Court states, ante, at 442 n. 3, that Pennsylvania has left the abortion decision to the patient and her physician in the manner prescribed in Doe v. Bolton. Pennsylvania indeed does allow the attending physician to provide a certificate of medical necessity "on the basis of all relevant factors," ante, at 442, n. 3, but Pennsylvania's concept of relevance does not extend far enough to permit doctors freely to provide certificates
of medical necessity for all elective abortions. At oral argument, counsel for petitioners carefully stated the State's position as follows:
"(L)et me make perfectly clear my concession. That is, that a physician, in examining a patient, may take psychological, physical, emotional, familial considerations into mind and in the light of those considerations, may determine if those factors affect the health of the mother to such an extent as he would deem an abortion necessary.
"I think the key in the Bolton language, and the key in the Vuitch (United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971)) language is the fact that the physician, using all of these facts and there are probably more that he should use must determine if the woman's health that is, her physical or psychological health is jeopardized by the condition of pregnancy.
"That is not to say, obviously, as I believe the Plaintiffs are asserting, that the fact that the family is going to increase makes an abortion medically necessary." Tr. of Oral Arg. 8.
Petitioners' "concession" only goes so far as to permit an attending physician to consider an abortion as it relates to a woman's health. Bolton recognized that the factors considered by a physician "may relate to health," but in the very same paragraph made clear that those factors were more broadly directed to the "well-being" of the woman. 410 U.S., at 192, 93 S.Ct., at 747 (emphasis added). While the right to privacy does implicate health considerations, the constitutional right recognized and protected by the Court's abortion decisions is the "right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972).
| 45
|
432 U.S. 491
97 S.Ct. 2411
53 L.Ed.2d 506
Frances MORRIS and Maxine Woods, Appellants,v.L. Marion GRESSETTE et al.
No. 75-1583.
Argued April 18-19, 1977.
Decided June 20, 1977.
Syllabus
Section 5 of the Voting Rights Act of 1965 establishes two alternative methods by which States subject to the Act can obtain federal preclearance review of a change in their voting laws: (1) the State may file a declaratory judgment action in the District Court for the District of Columbia and subsequently may implement such change if that court declares that the change has no racially discriminatory purpose or effect; or (2) the State may submit the change to the Attorney General and subsequently may enforce the change if the Attorney General has not interposed an objection within 60 days. A plan reapportioning the South Carolina Senate, enacted into law on May 6, 1972, and filed with the District Court for the District of South Carolina, which had invalidated a previous plan in a consolidated action challenging its constitutionality, was submitted to the Attorney General on May 12 for preclearance review under § 5. On May 23 the District Court found the new plan constitutional, and on June 30 the Attorney General notified South Carolina that he would interpose no objection but would defer to the court's determination. Thereafter, another suit was brought in the District Court for the District of Columbia, challenging the Attorney General's failure to object to the new plan, and in response to that court's order of May 16, 1973, to make a reasoned determination as to the constitutionality of the new plan, the Attorney General stated that in his view it was unconstitutional but that he still refused to interpose an objection in deference to the ruling of the District Court for the District of South Carolina. However, on July 19, 1973, the District Court for the District of Columbia directed the Attorney General to consider the new plan without regard to the other District Court's decision, and the next day the Attorney General interposed an objection to the plan. The Court of Appeals for the District of Columbia Circuit affirmed, holding that the Attorney General's initial failure to interpose an objection was reviewable and that § 5 required him to make an independent determination on the merits of the § 5 issues. The present suit was then filed by appellant South Carolina voters in the District Court for the District of South Carolina, seeking to enjoin implementation of the new plan on the ground that the Attorney General had interposed an objection and the State had not subsequently obtained a favorable declaratory judgment from the District Court for the District of Columbia. A three-judge court dismissed the complaint, holding that the collateral-estoppel doctrine did not preclude it from considering the State's contention that, notwithstanding the Court of Appeals' decision in the previous action, the requirements of § 5 were satisfied when the Attorney General failed to interpose an objection within 60 days after submission of the new plan to him, and that the Administrative Procedure Act did not authorize judicial review of the Attorney General's initial determination to defer to the ruling that the new plan was constitutional, and that therefore the Attorney General's failure to interpose a timely objection left South Carolina free to implement the new plan. Held: The objection interposed by the Attorney General to the new plan on July 20, 1973, nunc pro tunc, is invalid, and therefore South Carolina is free to implement such plan. Pp. 499-507.
(a) The nature of the § 5 remedy, which has been characterized as an "unusual" and "severe" procedure, strongly suggests that Congress did not intend the Attorney General's actions under that provision to be subject to judicial review. Unlike the first alternative method of obtaining a declaratory judgment, § 5 does not condition implementation of changes in voting laws under the second method of compliance on an affirmative statement by the Attorney General that the change is without racially discriminatory purpose or effect, but, to the contrary, compliance with § 5 under this second method is measured solely by the absence, for whatever reason, of a timely objection on the Attorney General's part. Pp. 501-503.
(b) In light of the potential severity of the § 5 remedy, the statutory language, and the legislative history, it is clear that Congress intended to provide covered jurisdictions with an expeditious alternative to declaratory judgment actions by providing submission to the Attorney General as such an alternative. Since judicial review of the Attorney General's action would unavoidably extend the period specified in the statute, it is necessarily precluded. Pp. 504-505.
(c) Where the discriminatory character of an enactment is not detected upon review by the Attorney General, it can be challenged in traditional constitutional litigation, but it cannot be questioned in a suit seeking judicial review of the Attorney General's exercise of discretion under § 5, or his failure to object within the statutory period. Pp.505-507.
425 F.Supp. 331, affirmed.
Randall T. Bell, Columbia, S. C., for appellees.
J. Roger Wollenberg, Washington, D. C., for appellants.
Mr. Justice POWELL delivered the opinion of the Court.
1
The issue in this case concerns the scope of judicial review of the Attorney General's failure to interpose a timely objection under § 5 of the Voting Rights Act of 1965 to a change in the voting laws of a jurisdiction subject to that Act.
2
* The events leading up to this litigation date back to November 11, 1971, when South Carolina enacted Act 932 reapportioning the State Senate.1 South Carolina promptly submitted Act 932 to the Attorney General of the United States for preclearance review pursuant to § 5 of the Voting Rights Act. 79 Stat. 439, as amended, 42 U.S.C. § 1973c (1970 ed., Supp. V).2 That section forbids States subject to the Act to implement any change in "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" without first (i) obtaining a declaratory judgment from the District Court for the District of Columbia that the proposed change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race of color," or (ii) submitting the change to the Attorney General and receiving no objection within 60 days.3 While the Attorney General had Act 932 under review, several suits were filed in the United States District Court for the District of South Carolina challenging that Act as violative of the Fourteenth and Fifteenth Amendments and seeking to enjoin its enforcement until preclearance had been obtained under § 5. The cases were consolidated and a three-judge District Court was convened.
3
On March 6, 1972, the Attorney General interposed an objection to Act 932.4 Although the South Carolina District Court was aware of this objection an objection that, standing alone, would have justified an injunction against enforcement of the Act the court proceeded to address the constitutional validity of the reapportionment plan.5 That court rejected the Fifteenth Amendment claim for lack of evidence that Act 932 was racially motivated, but held that the Act violated the Fourteenth Amendment due to malapportionment. The court retained jurisdiction and allowed South Carolina 30 days to enact an acceptable substitute reapportionment plan. Twiggs v. West, Civ. No. 71-1106 (S.C. Apr. 7, 1972).
4
On May 6, 1972, a new senate reapportionment plan was enacted into law as § 2 of Act 1205.6 This new plan was filed with the District Court, and it was submitted to the Attorney General on May 12 for preclearance review. On May 23 the District Court found the plan constitutional.7 By letter dated June 30, the Attorney General notified South Carolina that he would not interpose an objection to the new plan because he felt "constrained to defer to the . . . determination of the three-judge District Court" in Twiggs v. West, supra.8 App. 48. Thus, as of June 30, 1972, § 2 of Act 1205 had been declared constitutional by a three-judge District Court, and the Attorney General had declined to interpose an objection under § 5 of the Voting Rights Act.9
5
Not content with the Attorney General's decision to defer to the judicial determination of the three-judge District Court, several of the named plaintiffs in the consolidated Twiggs action commenced another suit in the United States District Court for the District of Columbia on August 10, 1972, in which they challenged the Attorney General's failure to object to the new senate reapportionment plan. On May 16, 1973, that court ordered the Attorney General to make "a reasoned decision in accordance with his statutory responsibility." Harper v. Kleindienst, 362 F.Supp. 742, 746 (1973). In response to this order, the Attorney General stated that in his view the plan violated the Fifteenth Amendment, but he reaffirmed his refusal to interpose an objection on the ground that he was constrained to defer to the ruling of the District Court in Twiggs v. West. App. to Brief for Appellants 4a. On July 19, 1973, the District of Columbia District Court directed the Attorney General to consider Act 1205 without regard to the decision in Twiggs v. West. The next day the Attorney General interposed an objection because he was "unable to conclude that Act No. 1205 does not have the effect of abridging voting rights on account of race." App. 52.
6
On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed. It held that the Attorney General's decision not to interpose an objection was reviewable under the circumstances of this case,10 and that § 5 requires him to make an independent determination on the merits of § 5 issues. Harper v. Levi, 171 U.S.App.D.C. 321, 520 F.2d 53 (1975).
7
Armed with the decision of the Court of Appeals and the belated objection interposed by the Attorney General, two South Carolina voters filed the present suit in the United States District Court for the District of South Carolina as a class action under § 5 of the Voting Rights Act. See Allen v. State Board of Elections, 393 U.S. 544, 557-563, 89 S.Ct. 817, 827-830, 22 L.Ed.2d 1 (1969). The plaintiffs, appellants here, sought an injunction against implementation of § 2 of Act 1205 on the ground that the Attorney General had interposed an objection and the State had not subsequently obtained a favorable declaratory judgment from the United States District Court for the District of Columbia. The three-judge District Court convened under § 5 dismissed the complaint. 425 F.Supp. 331 (1976). It held that the doctrine of collateral estoppel did not preclude it from considering South Carolina's contention that, notwithstanding the decision in Harper v. Levi, supra, the requirements of § 5 were satisfied when the Attorney General failed to interpose an objection within 60 days after submission to him of Act 1205.11 The District Court also ruled that the Administrative Procedure Act did not authorize judicial review of the Attorney General's initial determination to defer to the ruling of the three-judge District Court in Twiggs v. West. In light of these considerations, the District Court concluded that the failure of the Attorney General to interpose an objection within the applicable 60-day period left South Carolina free to implement the new senate reapportionment plan.
8
We noted probable jurisdiction to determine the reviewability of the Attorney General's failure to interpose a timely objection under § 5 of the Voting Rights Act. 429 U.S. 997, 97 S.Ct. 522, 50 L.Ed.2d 607 (1976). For the reasons stated below, we affirm.
II
9
The ultimate issue in this case concerns the implementation of South Carolina's reapportionment plan for the State Senate. Since that plan has not been declared by the District Court for the District of Columbia to be without racially discriminatory purpose or effect, it can be implemented only if the Attorney General "has not interposed an objection" to the plan within the meaning of § 5 of the Voting Rights Act.12 It is conceded that no objection was entered within the 60-day period. 425 F.Supp., at 333. But appellants insist that the Attorney General's nunc pro tunc objection of July 20, 1973, is effective under the Act and thus bars implementation of the reapportionment plan. Since that objection was interposed pursuant to the District Court's order in Harper v. Kleindienst, its validity depends on whether the Harper court had jurisdiction under the Administrative Procedure Act to review the Attorney General's failure to object.13
10
The Administrative Procedure Act stipulates that the provisions of that Act authorizing judicial review apply "except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701(a).14 It is now well settled that "judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967).15 The reviewing court must determine whether "Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion." Barlow v. Collins, 397 U.S. 159, 165, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970).
11
As no provision of the Voting Rights Act expressly precludes judicial review of the Attorney General's actions under § 5, it is necessary to determine "whether nonreviewability can fairly be inferred." 397 U.S., at 166, 90 S.Ct., at 837. See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827, 831, 25 L.Ed.2d 184 (1970); switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). That inquiry must address the role played by the Attorney General within "the context of the entire legislative scheme." Abbott Laboratories v. Gardner, supra, 387 U.S., at 141, 87 S.Ct., at 1511.
12
The nature of the § 5 remedy, which this Court has characterized as an "unusual" and "severe" procedure, Allen v. State Board of Elections, 393 U.S. 544, 556, 89 S.Ct. 817, 827, 22 L.Ed.2d 1 (1969), strongly suggests that Congress did not intend the Attorney General's actions under that provision to be subject to judicial review. Section 5 requires covered jurisdictions to delay implementation of validly enacted state legislation until federal authorities have had an opportunity to determine whether that legislation conforms to the Constitution and to the provisions of the Voting Rights Act. See South Carolina v. Katzenbach, 383 U.S. 301, 334, 86 S.Ct. 803, 821, 15 L.Ed.2d 769 (1966). Section 5 establishes two alternative methods by which covered jurisdictions can comply with this severe requirement of federal preclearance review. First, a covered jurisdiction may file a declaratory judgment action in the District Court for the District of Columbia and subsequently may implement the change in voting laws if that court declares that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c (1970 ed., Supp. V). Second, a covered jurisdiction may submit a change in voting laws to the Attorney General and subsequently may enforce the change if "the Attorney General has not interposed an objection within sixty days after such submission." Ibid.
13
According to the terms of § 5, a covered jurisdiction is in compliance pursuant to the latter alternative once it has (i) filed a complete submission with the Attorney General, and (ii) received no objection from that office within 60 days. This second method of compliance under § 5 is unlike the first in that implementation of changes in voting laws is not conditioned on an affirmative statement by the Attorney General that the change is without discriminatory purpose or effect.16 To the contrary, compliance with § 5 is measured solely by the absence, for whatever reason of a timely objection on the part of the Attorney General.17 And this Court has recognized that "(o)nce the State has successfully complied with the § 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality; there is no further remedy provided by § 5." Allen v. State Board of Elections, supra, 393 U.S., at 549-550, 89 S.Ct., at 823.
14
Although there is no legislative history bearing directly on the issue of reviewability of the Attorney General's actions under § 5, the legislative materials do indicate a desire to provide a speedy alternative method of compliance to covered States. Section 8 of the original bill provided for preclearance review only by means of a declaratory judgment action in the District Court for the District of Columbia. Hearings on S.1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965) (hereafter Senate Hearings). Justified concerns arose that the time required to pursue such litigation would unduly delay the implementation of validly enacted, nondiscriminatory state legislation. Cognizant of the problem, Attorney General Katzenbach suggested that the declaratory judgment procedure "could be improved by applying it only to those laws which the Attorney General takes exception to within a given period of time." Senate Hearings 237. The legislation was changed to incorporate this suggestion.18
15
In light of the potential severity of the § 5 remedy, the statutory language, and the legislative history, we think it clear that Congress intended to provide covered jurisdictions with an expeditious alternative to declaratory judgment actions. The congressional intent is plain: The extraordinary remedy of postponing the implementation of validly enacted state legislation was to come to an end when the Attorney General failed to interpose a timely objection based on a complete submission.19 Although there was to be no bar to subsequent constitutional challenges to the implemented legislation, there also was to be "no dragging out" of the extraordinary federal remedy beyond the period specified in the statute. Switchmen's Union v. National Mediation Board, 320 U.S., at 305, 64 S.Ct., at 99. Since judicial review of the Attorney General's actions would unavoidably extend this period, it is necessarily precluded.20
16
Our conclusions in this respect are reinforced by the fact that the Attorney General's failure to object is not conclusive with respect to the constitutionality of the submitted state legislation.21 The statute expressly provides that neither "an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object . . . shall bar a subsequent action to enjoin enforcement" of the newly enacted legislation or voting regulation. Cf. Dunlop v. Bachowski, 421 U.S. 560, 569-570, 95 S.Ct. 1851, 1858-1859, 44 L.Ed.2d 377 (1975). It is true that it was the perceived inadequacy of private suits under the Fifteenth Amendment that prompted Congress to pass the Voting Rights Act. Allen v. State Board of Elections, 393 U.S., at 556 n. 21, 89 S.Ct., at 827; South Carolina v. Katzenbach, 383 U.S., at 309, 86 S.Ct., at 808. But it does not follow that Congress did not intend to preclude judicial review of Attorney General actions under § 5.22 The initial alternative requirement of submission to the Attorney General substantially reduces the likelihood that a discriminatory enactment will escape detection by federal authorities.23 Where the discriminatory character of an enactment is not detected upon review by the Attorney General, it can be challenged in traditional constitutional litigation. But it cannot be questioned in a suit seeking judicial review of the Attorney General's exercise of discretion under § 5, or his failure to object within the statutory period.24
III
17
For these reasons, we hold that the objection interposed by the Attorney General to § 2 of Act 1205 on July 20, 1973, nunc pro tunc, is invalid.25 South Carolina is therefore free to implement its reapportionment plan for the State Senate.
18
Affirmed.
19
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
20
The Court holds today that an Attorney General's failure to object within 60 days to the implementation of a voting law that has been submitted to him under § 5 of the Voting Rights Act, as amended, 42 U.S.C. § 1973c (1970 ed., Supp. V), cannot be questioned in any court. Under the Court's ruling, it matters not whether the Attorney General fails to object because he misunderstands his legal duty, as in this case; because he loses the submission; or because he seeks to subvert the Voting Rights Act. Indeed, the Court today grants unreviewable discretion to a future Attorney General to bargain acquiescence in a discriminatory change in a covered State's voting laws in return for that State's electoral votes.1 Cf. J. Randall & D. Donald, The Civil War and Reconstruction 678-701 (2d ed. 1961) (settlement of the election of 1876).
21
Common sense proclaims the error of this result. It is simply implausible that Congress, which devoted unusual attention to this Act in recognition of its stringency and importance, see South Carolina v. Katzenbach, 383 U.S. 301, 308-309, 86 S.Ct. 803, 808-809, 15 L.Ed.2d 769 (1966), intended to allow the Act's primary enforcement mechanism to be vitiated at the whim of an Attorney General. Legal analysis supports the conclusion that Congress did no such thing. But today, the majority puts aside both common sense and legal analysis, relying instead on fiat. I dissent.
22
* A.
23
I agree with the majority that the dispositive issue in this case is whether Congress has precluded all judicial review of the Attorney General's failure to enter an objection to implementation of a state statute submitted to him for review under § 5.2 And, as the majority notes, it is indeed "well settled that 'judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.' " Ante, at 501, quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). If the Court applied rather than merely acknowledged this standard, the judgment below would be reversed.
24
The Voting Rights Act does not explicitly preclude review of the Attorney General's actions under § 5. The absence of such a provision places on appellees "the heavy burden of overcoming the strong presumption that Congress did not mean to prohibit all judicial review of (the Attorney General's) decision(s)." Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975). The normal "strong" presumption is strengthened still further in this case by the express prohibition, contained in § 4(b) of the Act, 42 U.S.C. § 1973b(b), of judicial review of the Attorney General's determinations under that section as to which States are covered by the Act.3 If the Congress that wrote § 4 had also intended to preclude review of the same officer's actions under § 5, it would certainly have said so. The Court makes no effort to explain why the congressional silence in § 5 should be treated as the equivalent of the congressional statement in § 4.
25
Not only is there nothing in § 5 precluding review, there is also, as the Court admits, "no legislative history bearing directly on the issue of reviewability of the Attorney General's actions under § 5." Ante, at 503. Thus, all the Court offers in support of its conclusion that the strengthened presumption of reviewability should be disregarded in this case is an inference that review must be foreclosed to serve the assertedly primary congressional purpose of limiting the time during which covered States are prevented from implementing new legislation. That inference is purportedly drawn from an inquiry into "the role played by the Attorney General within 'the context of the entire legislative scheme.' " Ante, at 501, quoting Abbott Laboratories v. Gardner, supra, 387 U.S., at 141, 87 S.Ct., at 1511. In fact, however, the Court completely ignores the Attorney General; the majority's version of § 5 requires a covered State to submit its statutes to a mailing address at the Department of Justice and to wait for 60 days before implementing the submitted laws, but it does not impose any duties on the Attorney General. The time limit on the Attorney General's action, and not any requirement that he review submitted laws for compliance with the Voting Rights Act is, according to the Court, the key aspect of the part of § 5 with which we are concerned.
26
We have previously taken a much different view of § 5. Just four years ago, in Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973), we were required to consider the Attorney General's role in § 5. We recognized that in doing so,
27
"it is important to focus on the entire scheme of § 5. That portion of the Voting Rights Act essentially freezes the election laws of the covered States unless a declaratory judgment is obtained in the District Court for the District of Columbia holding that a proposed change is without discriminatory purpose or effect. The alternative procedure of submission to the Attorney General 'merely gives the covered State a rapid method of rendering a new state election law enforceable.' Allen v. State Board of Elections, 393 U.S. (544,) at 549, 89 S.Ct. (817) at 823, 22 L.Ed.2d 1." 411 U.S., at 538, 93 S.Ct., at 1709 (emphasis added).
28
Because the provision for submission to the Attorney General was meant only to ameliorate and not to change the "essential" burden of § 5, we upheld regulations that deferred the beginning of the 60-day review period created by the Act until a submission satisfied certain criteria. We noted that "(t)he judgment that the Attorney General must make is a difficult and complex one," 411 U.S., at 540, 93 S.Ct., at 1710 (emphasis added), and that if he could not await complete information, "his only plausible response to an inadequate or incomplete submission would be simply to object to it."4 Ibid. We also upheld the Attorney General's placement of the burden of proof on States submitting legislation for approval, because
29
"(a)ny 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." Id., at 538, 93 S.Ct., at 1709.
30
In contrast to today's ruling, we held that providing such a path was not the function of the proviso to § 5 which established clearance by the Attorney General as an alternative to the declaratory judgment action.
31
Our description in Georgia v. United States of the very limited function of the proviso supports the conclusion that the Attorney General should respond to a submitted statute as would the District Court for the District of Columbia if the State brought a declaratory judgment action seeking approval of that statute. The regulation approved by the Court in Georgia v. United States explicitly imposes that obligation on the Attorney General. 28 CFR § 51.19 (1976).5 Moreover, the regulation also specifies the actions the Attorney General must take:
32
"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 (on the State) applicable to the District Court, enter an objection and so notify the submitting authority." Ibid.
33
This validly adopted regulation, which clearly requires the Attorney General to enter an objection unless he determines the submitted legislation has neither the proscribed purpose nor the forbidden effect, is binding on the Attorney General. See United States v. Nixon, 418 U.S. 683, 695-696, 94 S.Ct. 3090, 3101-3102, 41 L.Ed.2d 1039 (1974); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954).
34
Thus, both the statute and the regulation impose on the Attorney General a duty to review submitted statutes and disapprove them unless he is satisfied that they meet the standards established by the Act. It is undisputed in this case that the Attorney General, after reviewing the reapportionment legislation submitted by South Carolina, was unable to make that determination.6 It was, therefore, his duty to object to implementation of that legislation. He did not perform that duty,7 deferring instead to a District Court judgment that the majority concedes should not have been entered.8
35
The majority holds that this failure is insulated from judicial review under the provision of the Administrative Procedure Act expressly designed for such defaults, 5 U.S.C. § 706(1),9 for one reason only: The statute contains a deadline within which the Attorney General must act. This holding that the existence of a deadline for the performance of an administrative duty is a "persuasive reason" to believe that failure to perform that duty cannot be reviewed is unique among our decisions.10 I trust it will remain unique. Nothing in the existence of a deadline for the performance of an administrative duty provides persuasive reason or indeed any reason at all to believe that failure to perform that duty cannot be reviewed.11 The illogic of the Court's argument transmogrifies a deadline for action into an impenetrable shield for inaction.
B
36
The Court's conclusion is not only inconsistent with our description of § 5 in Georgia v. United States, it is also flatly inconsistent with our holding in that case. For in Georgia v. United States, we reviewed the standard by which the Attorney General determined to object to implementation of a submitted statute. The majority approved of the standard, and the dissenters objected to it,12 but the Court unanimously rejected the Government's argument that the propriety of the objection was "outside the permissible scope of judicial inquiry." Brief for United States in Georgia v. United States, O.T.1972, No. 72-75, p. 38.
37
The Court simply ignores this glaring contradiction between our action in Georgia v. United States and its holding today. Since the Court does not overrule Georgia v. United States, I can only conclude that the law now allows review of the Attorney General's decision to object to implementation of a statute, but it does not allow review of his failure to object.13 I can find no support for such a bizarre rule. I am sure that others, especially members of the Congress whose intent the Court is supposedly following, will be equally baffled.
II
38
Perhaps out of justifiable embarrassment, the majority never mentions the effect of its ruling. That effect is easy to describe: The Court today upholds a system of choosing members of the South Carolina Senate that has prevented the election of any black senators, despite the fact that 25% of South Carolina's population is black.14 Thus, South Carolina, which was a leader of the movement to deprive the former slaves of their federally guaranteed right to vote, South Carolina v. Katzenbach, 383 U.S., at 310-311, 86 S.Ct., at 809, and n. 9, 333-334, 86 S.Ct., at 821-822, is allowed to remain as one of the last successful members of that movement. It would take much more evidence than the Court can muster to convince me that this result is consistent with "Congress' firm intention to rid the country of racial discrimination in voting." Id., at 315, 86 S.Ct., at 812. Certainly the Court has failed to identify " 'clear and convincing evidence,' " Abbott Laboratories v. Gardner, 387 U.S., at 141, 87 S.Ct., at 1511, that this result is compelled by the Act Congress passed to implement that intention.
39
It is true that today's decision does not quite spell the end of all hope that the South Carolina Senate will someday be representative of the entire citizenry of South Carolina. If the Decennial Census in 1980 requires substantial reapportionment, and if the Voting Rights Act is still in effect when that reapportionment takes place, and if the then Attorney General is conscientious, the devices approved today will be rejected under the strict standards of § 5. See Georgia v. United States, 411 U.S., at 531, 93 S.Ct., at 1706. But see Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). This highly contingent possibility that the promise of the Fifteenth Amendment will be realized in South Carolina, some 110 years after that Amendment was ratified, is apparently sufficient in the eyes of the majority. It is not sufficient for me, as it was not for Congress, which wrote the Voting Rights Act in 1965 to put an end to what was then "nearly a century of widespread resistance to the Fifteenth Amendment." South Carolina v. Katzenbach, supra, 383 U.S., at 337, 86 S.Ct., at 823.
40
Mr. Justice BLACKMUN, dissenting.
41
In Harper v. Levi, 171 U.S.App.D.C. 321, 520 F.2d 53 (1975), the United States Court of Appeals for the District of Columbia Circuit held that the Attorney General's decision not to make an independent assessment of South Carolina Act 1205 is reviewable under the circumstances of this case, and that § 5 of the Voting Rights Act of 1965 requires him to make an independent determination on the merits of the § 5 issues. See ante, at 497-498. For the reasons stated by the majority opinion in Harper v. Levi, I dissent.
1
Act 932 provided for multimember districts, required each candidate to run for a single, numbered post, and specified that primary elections be decided by a majority vote. See Harper v. Levi, 171 U.S.App.D.C. 321, 325-326, 520 F.2d 53, 57-58 (1975).
2
Section 5, as set forth in 42 U.S.C. § 1973c (1970 ed., Supp. V), provides in pertinent part:
"Whenever 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 first 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, 1964, . . . 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, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, 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 officer 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, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor 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. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. 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."
The constitutionality of this procedure was upheld in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). It has been held applicable when a State or political subdivision adopts a legislative reapportionment plan. Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976); Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969).
3
See South Carolina v. Katzenbach, supra, 383 U.S., at 319-320, 86 S.Ct., at 813-814; Allen v. State Board of Elections, supra, 383 U.S., at 548-550, 89 S.Ct., at 822-823; Hadnott v. Amos, 394 U.S. 358, 366, and n. 5, 89 S.Ct. 1101, 1105, 22 L.Ed.2d 336 (1969); Perkins v. Matthews, 400 U.S. 379, 380-382, 91 S.Ct. 431, 433-434, 27 L.Ed.2d 476 (1971); Georgia v. United States, supra, 411 U.S., at 529, 93 S.Ct. at 1705; City of Richmond v. United States, 422 U.S. 358, 361-362, 95 S.Ct. 2296, 2299-2300, 45 L.Ed.2d 245 (1975); Beer v. United States, supra, 425 U.S., at 131-133, 96 S.Ct., at 1359-1360; United Jewish Organizations of Williamsburgh v. Carey, 430 U.S. 144, 147-148, 97 S.Ct. 996, 1000-1001, 51 L.Ed.2d 229 (1977) (plurality opinion).
4
The objection was entered within the 60-day statutory period since the submission on Act 932 was not considered to be complete until January 5, 1972. See Georgia v. United States, supra, 411 U.S., at 539-541, 93 S.Ct., at 1710-1711; n. 19, infra. The Attorney General interposed an objection because he had been "unable to conclude . . . that the combination of multi-member districts, numbered posts, and a majority (run-off) requirement would not occasion an abridgment of minority voting rights in South Carolina." App. 27.
5
The District Court declined to rule on the claims under § 5 of the Voting Rights Act:
"Prior to final arguments, the Attorney General of the United States had refused to approve the Act under the terms of the Voting Rights Act of 1965. The defendants stated, during argument, that they intended to contest that decision of the Attorney General in the District Court of the District of Columbia, which, by law, is the proper forum for review under the terms of the Voting Rights Act of 1965. We shall accordingly not consider the claims of the plaintiff McCollum, under the Voting Rights Act, but shall confine our consideration to the claims of invalidity under the Fourteenth and Fifteenth Amendments, which admittedly are properly before this Court." App. to Jurisdictional Statement 30a.
6
Section 2 reapportioned the State's senatorial districts. It established two alternative reapportionments Plan A and Plan B and provided that if Plan A did not meet the constitutional guidelines as set forth by the District Court, Plan B would be put into effect. Act 1205 retained the provisions of Act 932 calling for multimember districts, numbered posts, and a majority vote in primaries. See Harper v. Levi, 171 U.S.App.D.C., at 326, 520 F.2d, at 58.
Section 3 of Act 1205 extended the numbered-post requirement to existing multimember districts in the State's House of Representatives, the other chamber of the South Carolina General Assembly.
7
This Court summarily affirmed the decision of the District Court. Powell v. West, 413 U.S. 901, 93 S.Ct. 3049, 37 L.Ed.2d 1020 (1973).
8
This Court held in Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975), that reapportionment legislation adopted by the legislature on its own authority in the course of litigation is not effective in a covered jurisdiction until after compliance with § 5's preclearance review provisions. (Such legislation is to be distinguished from a "reapportionment scheme . . . submitted and adopted pursuant to court order," for which preclearance is not required. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 638 n.6, 96 S.Ct. 1083, 1085, 47 L.Ed.2d 296 (1976).) In light of the decision in Waller, the Attorney General has now abandoned his earlier policy of deference to district court decisions on constitutionality. Brief for United States as Amicus Curiae 10, 16.
9
While the Attorney General was considering Act 1205, South Carolina submitted for preclearance review Act 1204, which extended the numbered-post requirement to "all multi-member elective districts" in the State. See Harper v. Levi, supra, 171 U.S.App.D.C., at 326, 520 F.2d, at 58. On the same day that he declined to interpose an objection to § 2 of Act 1205, the Attorney General did interpose an objection to Act 1204 and to that portion of Act 1205 that required numbered posts for the State's House of Representatives. See n. 6, supra. The District Court in Twiggs v. West had not considered any provisions relating to the House.
10
The Court of Appeals stressed that the Harper plaintiffs contended only that "the Attorney General improperly relinquished his responsibility to independently evaluate the submitted legislation . . . ." Since they were "not challenging findings by the Attorney General on issues of fact, or an ultimate decision as to whether the submitting authority has discharged its burden of proving lack of discriminatory purpose or effect," the court found it unnecessary to decide whether such findings and decisions would be reviewable. 171 U.S.App.D.C., at 335, 520 F.2d, at 67. See also n. 24, infra.
11
Appellants have not pressed the collateral-estoppel argument in this Court. See Brief for Appellants 17-20.
12
Although appellants at one point argued in the District Court that Act 1205 was a court-ordered plan outside the scope of § 5, see East Carroll Parish School Board v. Marshall, supra; n.8, supra, the parties now agree that § 5 is applicable. Brief for Appellants 3 n.1; Brief for Appellees 14, and n. 7. See also Brief for United States as Amicus Curiae 14 n. 8.
13
Appellants suggest that it is unnecessary for this Court to reach the issue of reviewability since the single-judge District Court in Harper v. Kleindienst, 362 F.Supp. 742 (D.C.1973), issued an interlocutory order on August 11, 1972, declaring that the Attorney General's time to object had not expired and extending the time until the Attorney General acted or until further order of the District Court. Relying on United States v. United Mine Workers, 330 U.S. 258, 289-295, 67 S.Ct. 677, 91 L.Ed. 884 (1947), appellants contend that the Attorney General's objection of July 20, 1973, is valid regardless of the District Court's jurisdiction since it was entered pursuant to that court's order preserving the status quo pending its determination of jurisdiction.
The Mine Workers case involved the power of a district court to hold a party in contempt for disobedience of an order directed to that party. Appellants' reliance on that case is misplaced, for South Carolina was not a party to the Harper litigation and was not under a court order restraining enforcement of § 2 of Act 1205. Here the validity of the District Court's interlocutory order in Harper v. Kleindienst eventually turns on the reviewability of the Attorney General's initial decision not to enter an objection to § 2 of Act 1205. If Congress has precluded judicial review of the Attorney General's actions under § 5, the Harper court's interlocutory order cannot validate the Attorney General's nunc pro tunc objection of July 20, 1973.
14
With several exceptions not relevant here, the Act defines an agency as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency . . . ." 5 U.S.C. § 701(b)(1).
15
Accord, Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971); Tooahnippah v. Hickel, 397 U.S. 598, 606, 90 S.Ct. 1316, 1321, 25 L.Ed.2d 600 (1970); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 156-157, 90 S.Ct. 827, 831-832, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970).
16
Nor has this Court read § 5 to condition the interposition of an objection by the Attorney General on an affirmative finding that he has reason to believe that the change in voting laws has the prohibited purpose or effect. Compare Georgia v. United States, 411 U.S., at 540-541, 93 S.Ct., at 1710-1711, with id., at 544-545, 93 S.Ct., at 1712-1713 (WHITE, J., dissenting), and id., at 545, 93 S.Ct., at 1713 (POWELL, J., dissenting).
17
Our prior cases have so described the statutory scheme. See, e. g., City of Richmond v. United States, 422 U.S., at 362, 95 S.Ct., at 2299 (change in voting laws cannot be implemented unless "such change has either been approved by the Attorney General or that officer has failed to act within 60 days after submission to him"); Georgia v. United States, supra, 411 U.S., at 529, 93 S.Ct., at 1705 (change in voting laws can be implemented upon "submitting the plan to the Attorney General of the United States and receiving no objection within 60 days").
18
Compliance by means of submission to the Attorney General was added to the bill, but neither the Committee Reports nor the debates discussed the addition. S.Rep.No.162, 89th Cong., 1st Sess. (1965); H.R.Conf.Rep.No.711, 89th Cong., 1st Sess. (1965). The legislative history is summarized in Harper v. Levi, 171 U.S.App.D.C., at 333, 520 F.2d, at 65.
19
The Attorney General has promulgated regulations providing that the 60-day period shall commence from the time that the Department of Justice receives a submission satisfying certain enumerated requirements. 28 CFR § 51.3(b)-(d) (1976). These regulations were reviewed and found valid by this Court in Georgia v. United States, supra. The Court noted that "(t)he judgment that the Attorney General must make is a difficult and complex one, and no one would argue that it should be made without adequate information." 411 U.S., at 540, 93 S.Ct., at 1710. To deny the Attorney General the power to suspend the 60-day period until a complete submission was tendered would leave him no choice but to interpose an objection to incomplete submissions, a result which "would only add acrimony to the administration of § 5." Id., at 541, 93 S.Ct., at 1711.
Nothing in our opinion in Georgia v. United States suggests that Congress did not intend to preclude judicial review of the Attorney General's failure to interpose an objection within 60 days of a complete submission. The factors relied on in that case are inapplicable once a complete submission has been pending before the Attorney General for 60 days. Indeed, subsequent judicial review of the Attorney General's failure to interpose a timely objection to a complete submission would itself "add acrimony" by denying covered jurisdictions the statutorily prescribed "rapid method of rendering a new state election law enforceable." Allen v. State Board of Elections, 393 U.S., at 549, 89 S.Ct., at 823; see Georgia v. United States, supra, 411 U.S., at 538, 93 S.Ct., at 1709.
20
Mr. Justice MARSHALL'S dissent voices concern over a perceived "unique(ness)" of today's decision. Post, at 514, and n. 10. But the decision is unique only in the sense that every judicial holding with respect to implied preclusion of judicial review is unique; "the context of the entire legislative scheme," Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), differs from statute to statute. Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), the case cited by the dissent, illustrates the point. In that case, the Court did not confront anything analogous to the potential severity of the § 5 remedy at issue here. See supra, at 504. Moreover, the statute at issue in Dunlop provided that suit by the Secretary of Labor would be the exclusive post-election remedy. In the instant case, on the other hand, objection by the Attorney General is not the exclusive method of challenging changes in a State's voting laws, since the Attorney General's failure to object is not conclusive with respect to the constitutionality of submitted state legislation. See infra, this page.
21
Similarly, an objection on the part of the Attorney General is not conclusive with respect to the invalidity of the submitted state legislation under the Constitution or the Voting Rights Act. After receiving an objection from the Attorney General, a covered jurisdiction retains the option of seeking a favorable declaratory judgment from the District Court for the District of Columbia. See Beer v. United States, supra; City of Petersburg v. United States, 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 698 (1973), summarily aff'g 354 F.Supp. 1021 (D.C.1972).
22
Relying on the fact that § 4 of the Voting Rights Act expressly precludes judicial review of the Attorney General's actions under that section, post, at 509-510, and n. 3, see Briscoe v. Bell, 432 U.S. 404, 97 S.Ct. 2428, 53 L.Ed.2d 439, Mr. Justice MARSHALL'S dissent would formulate a new mechanical rule of statutory construction: If one section of a statute expressly forbids judicial review, it would not be open for the courts to inquire whether Congress also intended to preclude review under other sections of the same statute. Application of such a rule of statutory construction would prevent a court from giving effect to congressional intent that otherwise was clear from "the context of the entire legislative scheme." Abbott Laboratories v. Gardner, supra, 387 U.S., at 141, 87 S.Ct., at 1511. The existence of an express preclusion of judicial review in one section of a statute is a factor relevant to congressional intent, but it is not conclusive with respect to reviewability under other sections of the statute. Here, we simply conclude that other factors the harsh nature of the § 5 remedy, the statutory language, and the legislative materials are sufficiently strong indications of congressional intent to override any contrary inference that might be drawn from the fact that Congress expressly precluded judicial review in a different section of the same statute.
23
Mr. Justice MARSHALL's dissent opens with a "floodgates" argument: If there is no judicial review when the Attorney General misunderstands his legal duty, there also will be no judicial review when at sometime in the future the Attorney General bargains acquiescence in a discriminatory change in a covered State's voting laws in return for that State's electoral votes. Post, at 508, and n. 1. That "floodgates" concern is equally applicable to Congress' express preclusion of judicial review under § 4 of the Act, see n. 22, supra, a fact which suggests that Congress like the courts operates on the assumption that the Attorney General of the United States will perform faithfully his statutory responsibilities. In determining whether preclusion of judicial review can fairly be inferred from the context of the entire legislative scheme, we place no weight on the prospect that an Attorney General someday will trade electoral votes for preclearance under § 5.
24
The United States suggests that there should be limited judicial review only when the Attorney General improperly relinquishes his responsibility to evaluate independently the submitted legislation in light of the standards established by § 5. Brief for United States as Amicus Curiae 30-31. For the reasons stated in text, we think Congress intended to preclude all judicial review of the Attorney General's exercise of discretion or failure to act. We note, however, that there is no evidence in this case that the Attorney General improperly "relinquished" his statutory responsibilities. The record is clear that the Attorney General reviewed the submitted legislation as well as the judicial determination in Twiggs v. West, and decided not to interpose an objection to § 2 of Act 1205. That decision may have been erroneous, see n. 8, supra, but it nonetheless was a decision exercised pursuant to the Attorney General's § 5 responsibilities.
25
In light of this disposition of the case, we find it unnecessary to address the argument advanced by South Carolina that the single judge in Harper v. Kleindienst, 362 F.Supp. 742 (D.C.1973), had no jurisdiction to determine questions arising under § 5 of the Voting Rights Act. See Allen v. State Board of Elections, 393 U.S., at 560-563, 89 S.Ct., at 828-830.
1
"QUESTION: . . . I thought it was your position that even if he (the Attorney General) had said, we're interposing no objection because South Carolina voted Republican at the last election, that even that wouldn't be reviewable.
"(Counsel): We think
"QUESTION: Isn't that your position in its ultimate effect?
"(Counsel): If that were his objection, we would be quite confident in coming to the District Court of the District of Columbia ourselves, if he had objected on that basis.
"QUESTION: No, I said, he didn't object; he says, we're interposing no objection because your state voted right at the last election. Now what if he did that? Would that be reviewable? In your submission, it would not be; isn't that correct?
"(Counsel): It would not it would not fall within the kind of review being sought here.
"QUESTION: Exactly.
"(Counsel): I don't think we want to go so far as to say that what the Attorney General
"QUESTION: Well, your argument does go, and necessarily goes that far, as I understand it; and I don't find that shocking." Tr. of Oral Arg. 52-53.
2
The court below, in addition to finding that Congress had barred review, held that the Attorney General's actions under § 5 are not reviewable because they are not "adjudicatory" and because objecting voters have an adequate remedy in their right to challenge the constitutionality of state laws to which the Attorney General has failed to object. The court also concluded that the possibility of bringing a constitutional action prevents voters from attaining the status of persons "adversely affected or aggrieved," 5 U.S.C. § 702, by the Attorney General's failure to object. 425 F.Supp. 331, 337-339 (D.S.C.1976).
I take the majority to have rejected these holdings since the Court would not need to consider whether Congress had precluded review if it agreed with the District Court that appellants did not have standing or that the failure to object is not a reviewable agency action under the Administrative Procedure Act, 5 U.S.C. § 704. Since the majority rejects these holdings, I merely note that in my view, these alternative holdings of the District Court are patently erroneous.
3
This explicit statutory preclusion was decisive in Briscoe v. Bell, 432 U.S. 404, 97 S.Ct. 2428, 53 L.Ed.2d 439. The conclusion in that case that review is precluded when Congress says so obviously does not support the conclusion that review is also precluded when Congress has not said so.
4
Under today's holding, of course, the Attorney General is now granted license to make the entirely "implausible" response of failing to enter an objection no matter how incomplete or inadequate the State's submission may be.
5
Curiously, the Court never mentions this regulation. The portion of the regulation not quoted in text reads as follows:
"Section 5, in providing for submission to the Attorney General as an alternative to seeking a declaratory judgment from 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."
6
As the majority notes, the Attorney General objected to Act 932 because of the combination of multimember districts, numbered posts, and a majority-runoff requirement. Ante, at 495, and n. 4. The same objectionable features are contained in the senate reapportionment plan of Act 1205. The Attorney General did not object to that plan solely because he felt "constrained to defer" to the holding in Twiggs v. West, Civ. No. 71-1106 (S.C., Apr. 7, 1972), that the aspects of the reapportionment plan to which he had objected did not establish a violation of the Fifteenth Amendment because they were not racially motivated. Ante, at 496-497. That the Attorney General nevertheless maintained his belief that these features are inconsistent with the Voting Rights Act is shown by his simultaneous action in objecting to their extension to all other multimember districts in the State. App. 47. The Attorney General felt himself free to enter that objection because the Twiggs court had approved only the legislation relating to the Senate. See also App. to Brief for Appellants 4a (memorandum submitted by Attorney General to court in Harper v. Kleindienst, 362 F.Supp. 742 (D.C.1973), reiterating that Act 1205 would be objectionable but for the holding in Twiggs v. West, supra ); App. 51 (letter from Assistant Attorney General indicating that on behalf of the Attorney General he would have objected to Act 1205 but for the decision in Twiggs ).
7
The majority halfheartedly argues that the Attorney General did not relinquish his responsibility because it is clear that he reviewed Act 1205 and decided not to enter an objection to its implementation. Ante, at 507 n. 24. But it is clear, see n. 6, supra, that the only decision made by the Attorney General was the decision to defer to the views of the District Court in Twiggs v. West, supra. The Attorney General did not perform the duty imposed on him by the statute and his own regulations, which was to evaluate Act 1205 and enter an objection to it unless he was satisfied that it met the criteria of the Voting Rights Act.
8
See ante, at 495-496. See also United States v. Board of Supervisors, 429 U.S. 642, 97 S.Ct. 833, 51 L.Ed.2d 106 (1977); Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975).
9
"The reviewing court shall
"(1) compel agency action unlawfully withheld or unreasonably delayed."
10
In Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), we held reviewable the Secretary of Labor's decision not to challenge the validity of a union election under 29 U.S.C. § 482. Section 482, like § 5 of the Voting Rights Act, contains a 60-day deadline.
11
The majority's argument appears to be that review would defeat the congressional purpose of providing a speedier way than the declaratory judgment action for States to gain permission to implement new voting laws. Of course, this concern would only be relevant if it were necessarily true that the State could not implement the new law between the expiration of the 60-day period and the final judicial determination requiring the Attorney General to re-examine the statute. As this case illustrates, allowing review is not the same as requiring suspension of the challenged law until the review of the Attorney General's action has been completed.
12
My Brother WHITE protested:
"Surely, objections by the Attorney General would not be valid if that officer considered himself too busy to give attention to § 5 submissions and simply decided to object to all of them, to one out of 10 of them or to those filed by States with governors of a different political persuasion. Neither, I think, did Congress anticipate that the Attorney General could discharge his statutory duty by simply stating that he had not been persuaded that a proposed change in election procedures would not have the forbidden discriminatory effect. It is far more realistic and reasonable to assume that Congress expected the Attorney General to give his careful and good-faith consideration to § 5 submissions and, within 60 days after receiving all information he deemed necessary, to make up his mind as to whether the proposed change did or did not have a discriminatory purpose or effect, and if it did, to object thereto." 411 U.S., at 543, 93 S.Ct., at 1712 (emphasis added).
Under the majority's holding today, of course, failure to object for any of the reasons my Brother considered clearly invalid would not be subject to judicial correction.
13
But cf. ante, at 505 n. 21 and 507 n. 24.
14
The majority argues that preclusion of review is consistent with the congressional purpose because even if one or two bad laws slip by the Attorney General, the requirement that the laws be submitted to him will result in the interception of most discriminatory legislation. Ante, at 506-507. The effect of today's ruling, which allows South Carolina to keep its senate closed to blacks, demonstrates the fatuousness of this quantitative argument. Moreover, the Voting Rights Act, as restructured by the Court, now imposes no enforceable restraint on an Attorney General's decision not to object to any discriminatory laws.
| 12
|
432 U.S. 385
97 S.Ct. 2464
53 L.Ed.2d 423
UNITED AIRLINES, INC., Petitioner,v.Liane Buix McDONALD.
No. 76-545.
Argued March 29, 1977.
Decided June 20, 1977.
Rehearing Denied Dec. 5, 1977. See 434 U.S. 989, 98 S.Ct. 623.
Syllabus
Claiming that petitioner United Airlines had violated Title VII of the Civil Rights Act of 1964 by requiring stewardesses, though not stewards, to remain unmarried as an employment condition, one Romasanta, a stewardess who had been discharged by petitioner because of her marriage, brought this Title VII suit as a class action on behalf of herself and all other United stewardesses discharged because of the no-marriage rule. The District Court ruled that only those stewardesses who upon discharge because of marriage had filed charges under either a fair employment statute or United's collective-bargaining agreement constituted the class, and because that class was too small to satisfy the numerosity requirement of Fed.Rule Civ.Proc. 23(a)(1), the court granted United's motion to strike the complaint's class allegations, but allowed 12 married stewardesses who had protested their discharge to intervene as additional parties plaintiff. The District Court certified for appeal its order striking the class allegations, but the Court of Appeals declined to accept the interlocutory appeal. The litigation proceeded as a joint suit on behalf of the original and intervening plaintiffs, and the District Court ultimately determined that the plaintiffs were entitled to reinstatement and backpay and, following agreement by the parties on the amounts to be awarded each plaintiff, the court entered a judgment of dismissal. After learning of the Romasanta judgment and that despite their earlier attempt to do so the plaintiffs in that case did not plan to appeal the order denying class certification, respondent, a former United stewardess who had been discharged on account of the no-marriage rule and was thus a putative member of the Romasanta class and who had not filed charges or a grievance, filed, 18 days after the judgment (and therefore within the applicable appeal period) a motion to intervene for the purpose of appealing the adverse class determination order. The District Court denied intervention, from which denial as well as the denial of class certification, respondent appealed. The Court of Appeals reversed on the intervention denial as well as on the refusal to certify the class described in Romasanta's complaint a class consisting of all United stewardesses discharged because of the no-marriage rule, whether or not they had formally protested their discharge. Petitioner challenges the Court of Appeals' ruling that respondent's post-judgment intervention was timely under this Court's ruling in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713, which held that "the commencement of the original class suit tolls the running of the statute (of limitations) for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status." Petitioner argues that under American Pipe the relevant statute of limitations began to run after the denial of certification in Romasanta. Held: Respondent's motion to intervene was "timely" filed under Fed.Rule Civ.Proc. 24 and should have been granted. Respondent sought to intervene, not to litigate her individual claim based on the illegality of United's no-marriage rule (which would have put her in the same position as the American Pipe intervenors), but to obtain appellate review of the District Court's denial of the class-action status in Romasanta. The critical question is whether respondent as intervenor acted promptly after entry of the final judgment in Romasanta. The District Court's refusal to certify the class was subject to appellate review after final judgment, and since the named plaintiffs had tried to take an interlocutory appeal, respondent had no reason to suppose that they would not later take an appeal until she was advised to the contrary after the trial court had entered its final judgment. Thus as soon as it became clear that the interests of the unnamed class members would no longer be protected by the named class representatives, and within the applicable appeal period, respondent moved to protect those interests. Pp. 391-396.
537 F.2d 915, affirmed.
Stuart Bernstein, Chicago, Ill., for petitioner.
Thomas R. Meites, Chicago, Ill., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
Federal Rule Civ.Proc. 24 requires that an application to intervene in federal litigation must be "timely." In this case a motion to intervene was filed promptly after the final judgment of a District Court, for the purpose of appealing the court's earlier denial of class action certification. The question presented is whether this motion was "timely" under Rule 24.
2
Until November 7, 1968, United Airlines required its female stewardesses to remain unmarried as a condition of employment; no parallel restriction was imposed on any male employees, including male stewards and cabin flight attendants.1 This "no-marriage rule" resulted in the termination of the employment of a large number of stewardesses, and in turn spawned a good deal of litigation.
3
One of the first challenges to this rule was brought by Mary Sprogis, who filed timely charges with the Equal Employment Opportunity Commission in August 1966, contending that her discharge constituted 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. (1970 ed. and Supp. V). The EEOC found reasonable cause to believe that United's policy was illegal, and issued a "right to sue letter."2 Sprogis then filed a timely individual action in a Federal District Court, and the court agreed that the no-marriage rule violated Title VII. 308 F.Supp. 959 (N.D.Ill.). United took an interlocutory appeal under 28 U.S.C. § 1292(b) on the issue of liability, and the Court of Appeals for the Seventh Circuit affirmed the finding of sex discrimination. Sprogis v. United Air Lines, Inc., 444 F.2d 1194.
4
While the appeal in the Sprogis case was pending, the present action was filed in the same District Court by Carole Romasanta, a United stewardess who had been discharged in 1967 because of her marriage. She, too, had filed charges with the EEOC, leading to a finding of cause to believe that the no-marriage rule violated Title VII and the issuance of a right-to-sue letter. Romasanta then promptly filed the present suit as a class action on behalf of herself and all other United stewardesses discharged because of the no-marriage rule. Another United stewardess was later permitted to intervene as a named plaintiff.
5
(1) Several months later, the District Court granted United's motion to strike the complaint's class allegations, ruling that the class could properly consist of only those stewardesses who, upon the loss of their employment because of marriage, had filed charges under either a fair employment statute or United's collective-bargaining agreement. As thus defined, the class numbered not more than 30 and in the court's view did not satisfy the numerosity requirement of Fed. Rule Civ.Proc. 23(a)(1).3 As part of its order, however, the District Court allowed 12 married stewardesses who had protested the termination of their employment to intervene as additional parties plaintiff. Pursuant to 28 U.S.C. § 1292(b), the District Court certified for appeal its order striking the class allegations, but the Court of Appeals declined to accept this interlocutory appeal.4
6
The litigation proceeded as a joint suit on behalf of the original and the intervening plaintiffs, and the court ultimately determined that those plaintiffs not yet reinstated in their jobs were entitled to that remedy, and that every plaintiff was entitled to backpay. To aid in determining the amount of each backpay award, the court appointed as a Special Master the same person who had performed a similar task in the Sprogis litigation.5 Following guidelines adopted in Sprogis, the parties eventually agreed upon the amounts to be awarded each plaintiff, and upon consummation of this agreement the trial court entered a judgment of dismissal on October 3, 1975.
7
The specific controversy before us arose only after the entry of that judgment. The respondent, a former United stewardess, had been discharged in 1968 on account of the no-marriage rule. She was thus a putative member of the class as defined in the original Romasanta complaint. Knowing that other stewardesses had challenged United's no-marriage rule, she had not filed charges with the EEOC or a grievance under the collective-bargaining agreement.6
8
After learning that a final judgment had been entered in the Romasanta suit, and that despite their earlier attempt to do so the plaintiffs did not now intend to file an appeal challenging the District Court's denial of class certification, she filed a motion to intervene for the purpose of appealing the District Court's adverse class determination order. Her motion was filed 18 days after the District Court's final judgment, and thus was well within the 30-day period for an appeal to be taken.7 The District Judge denied the motion, stating:
9
"Well, in my judgment, gentlemen, this is five years now this has been in litigation, and this lady has not seen fit to come in here and seek any relief from this Court in any way during that period of time, and litigation must end. I must deny this motion. Of course, that is an appealable order itself, and if I am in error then the Court of Appeals can reverse me and we will grant a hearing, but in my judgment this is too late to come in."
10
The respondent promptly appealed the denial of intervention as well as the denial of class certification to the Court of Appeals for the Seventh Circuit. The appellate court reversed, holding that the District Court had been wrong in believing that the motion to intervene was untimely under Rule 24(b),8 and had also erred in refusing to certify the class as described in the Romasanta complaint a class consisting of all United stewardesses discharged because of the no-marriage rule, whether or not they had formally protested the termination of their employment. Romasanta v. United Airlines, Inc., 537 F.2d 915.
11
United's petition for certiorari did not seek review of the determination that its no-marriage rule violated Title VII, nor did it contest the merits of the Court of Appeals' decision on the class certification issue. Instead, it challenged only the Court of Appeals' ruling that the respondent's post-judgment application for intervention was timely. We granted the petition, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608, to consider that single issue.
12
In urging reversal, United relies primarily upon American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713. That case involved a private antitrust class action that had been filed 11 days short of the expiration of the statutory limitations period.9 The trial court later denied class certification because the purported class did not satisfy the numerosity requirement of Rule 23(a)(1).10 Neither the named plaintiffs nor any unnamed member of the class appealed that order, either then or at any later time. Eight days after entry of the order, a number of the putative class members moved to intervene as plaintiffs, but the trial court denied the motions as untimely. This Court ultimately reversed that decision, ruling that in those circumstances "the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status." 414 U.S., at 553, 94 S.Ct., at 766. Since 11 days remained when the statute of limitations again began to run after denial of class certification, and the motions to intervene as plaintiffs were filed only eight days after that denial, they were timely. Id., at 560-561, 94 S.Ct., at 769-770.
13
(2) It is United's position that, under American Pipe, the relevant statute of limitations began to run after the denial of class certification in the Romasanta action. United thus reasons that the respondent's motion to intervene was time barred, and in support of this position makes alternative arguments based on two different statutory periods of limitations prescribed by Title VII.11
14
This argument might be persuasive if the respondent had sought to intervene in order to join the named plaintiffs in litigating her individual claim based on the illegality of United's no-marriage rule, for she then would have occupied the same position as the intervenors in American Pipe. But the later motion to intervene in this case was for a wholly different purpose. That purpose was to obtain appellate review of the District Court's order denying class action status in the Romasanta lawsuit,12 and the motion complied with, as it was required to, the time limitation for lodging an appeal prescribed by Fed.Rule App.Proc. 4(a). Success in that review would result in the certification of a class, the named members of which had complied with the statute of limitations; the respondent is a member of that class against whom the statute had not run at the time the class action was commenced.
15
The lawsuit had been commenced by the timely filing of a complaint for classwide relief, providing United with "the essential information necessary to determine both the subject matter and size of the prospective litigation . . . ." American Pipe, supra, at 555, 94 S.Ct. at 767.13 To be sure, the case was "stripped of its character as a class action" upon denial of certification by the District Court. Advisory Committee's Note on 1966 Amendment to Rule 23, 28 U.S.C.App., p. 7767. But "it does not . . . follow that the case must be treated as if there never was an action brought on behalf of absent class members." Philadelphia Electric Company v. Anaconda American Brass Co., 43 F.R.D. 452, 461 (E.D.Pa.). The District Court's refusal to certify was subject to appellate review after final judgment at the behest of the named plaintiffs, as United concedes.14 And since the named plaintiffs had attempted to take an interlocutory appeal from the order of denial at the time the order was entered, there was no reason for the respondent to suppose that they would not later take an appeal until she was advised to the contrary after the trial court had entered its final judgment.
16
(3) The critical fact here is that once the entry of final judgment made the adverse class determination appealable, the respondent quickly sought to enter the litigation. In short, as soon as it became clear to the respondent that the interests of the unnamed class members would no longer be protected by the named class representatives, she promptly moved to intervene to protect those interests.15
17
United can hardly contend that its ability to litigate the issue was unfairly prejudiced simply because an appeal on behalf of putative class members was brought by one of their own, rather than by one of the original named plaintiffs. And it would be circular to argue that unnamed member of the putative class was not a proper party to appeal, on the ground that her interests had been adversely determined in the trial court. United was put on notice by the filing of the Romasanta complaint of the possibility of classwide liability, and there is no reason why Mrs. McDonald's pursuit of that claim should not be considered timely under the circumstances here presented.
18
(4) Our conclusion is consistent with several decisions of the federal courts permitting post-judgment intervention for the purpose of appeal.16 The critical inquiry in every such case is whether in view of all the circumstances the intervenor acted promptly after the entry of final judgment. Cf. NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648. Here, the respondent filed her motion within the time period in which the named plaintiffs could have taken an appeal. We therefore conclude that the Court of Appeals was correct in ruling that the respondent's motion to intervene was timely filed and should have been granted.
The judgment is
19
Affirmed.
20
Mr. Justice STEVENS took no part in the consideration or decision of this case.
21
Mr. Justice POWELL with whom THE CHIEF JUSTICE and Mr. Justice WHITE join, dissenting.
22
The Court's opinion shifts confusingly between the two distinct questions of timeliness raised by respondent McDonald's attempt to intervene in this action against petitioner United Airlines, Inc.1 The first question involves the effect of the statute of limitations on respondent's rights against petitioner. This question is directly relevant to the motion to intervene because a prerequisite of intervention for any purpose is that the intervenor have an interest in the litigation. Petitioner has consistently contended that respondent's interest in this litigation was barred by the statute of limitations at the time she sought to intervene. Assuming that respondent's interest was not time barred, the second question involves the broader and more discretionary concept of the timeliness of her motion to intervene under Fed.Rule Civ.Proc. 24. This was apparently the basis on which the District Court denied respondent's motion.
23
In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Court held that the filing of a class action complaint "suspended the running of the limitation period only during the pendency of the motion to strip the suit of its class action character." Id., at 561, 94 S.Ct., at 770 (emphasis added). Time again commenced to run under the limitations period when the District Court denied class status, and members of the putative class were allowed to intervene in the nonclass action only if their motions were filed before the expiration of the remaining time.
24
A straightforward reading of American Pipe leads to the conclusion that the filing of the class action complaint in Romasanta v. United Airlines tolled the statute of limitations for respondent, but "only during the pendency of the motion to strip the suit of its class action character." Under the American Pipe rule, the statute of limitations had run against respondent by the time she attempted to intervene. Thus, the Court's holding must reflect a decision to supplement the American Pipe rule with a novel tolling rule applicable only to intervention for the purpose of appealing the denial of class status. Under this new rule, the statute apparently is tolled from the filing of the class action complaint until such time after final judgment as the intervenor can determine that "the interests of the unnamed class members (will) no longer be protected by the named class representatives." Ante, at 394. I find no justification for this extension, either in precedent or policy.
25
Today's opinion also represents a marked departure from established law on the question of timeliness under Rule 24. The Court apparently has ruled that a motion to intervene for the purpose of appealing the denial of class status is timely under Rule 24 as a matter of law, so long as it is filed "within the time period in which the named plaintiffs could have taken an appeal." Ante, at 396. The discretionary judgment of the District Court emphasized in NAACP v. New York, 413 U.S. 345, 365-366, 93 S.Ct. 2591, 2602, 2603, 37 L.Ed.2d 648 (1973), is thus eliminated.
26
The Court purports to distinguish American Pipe on the ground that respondent's purpose in intervening was not "to join the named plaintiffs in litigating her individual claim" but rather "to obtain appellate review of the District Court's order denying class action status." Ante, at 392. The relevance of this undisputed factual distinction is not explained, but two major themes can be identified in the Court's opinion: First, that respondent was justified in relying on the named plaintiffs to protect her interest by taking an appeal, and second, that petitioner was not prejudiced by respondent's intervention at the end of the litigation. These themes have a common analytical weakness, namely, the Court's unwillingness to accept the consequences of the District Court's denial of class status. In the words of the Advisory Committee that drafted the 1966 amendment to Rule 23, the action was thereby "stripped of its character as a class action." 28 U.S.C.App., p. 7767. After the denial of class status, the action proceeded as an ordinary nonclass action by the individual plaintiffs against petitioner.2
27
Under the Court's analysis, the "critical fact" in this case is that "once the entry of final judgment made the adverse class determination appealable," respondent moved to intervene "as soon as it became clear (to her) that the interests of the unnamed class members would no longer be protected by the named class representatives." Ante, at 394. Pervading the Court's opinion is the assumption that the class action somehow continued after the District Court denied class status. But that assumption is supported neither by the text nor by the history of Rule 23. To the contrary, those sources as well as this Court's decision in American Pipe support the view that the denial of class status converts the litigation to an ordinary nonclass action. Reliance by respondent on the former class representatives was therefore misplaced. After the denial of class status, they were simply individual plaintiffs with no obligation to the members of the class. Pearson v. Ecological Science Corp., 522 F.2d 171 (C.A.5 1975). In the words of Judge Pell, dissenting below the denial of class status is "a critical point which puts putative class members on notice that they must act to protect their rights." Romasanta v. United Airlines, Inc., 537 F.2d 915, 922 (C.A.7 1976).
28
The Court's casual treatment of the prejudice to petitioner also reflects its assumption that the class action persisted despite the denial of class status. Petitioner was fully justified in attempting to resolve the dispute as a nonclass action. Having achieved a settlement of the case, petitioner was prejudiced by respondent's attempt to reopen the case. It is true that the possibility of an appeal of the denial of class status existed, but the Court's treatment of that possibility misconceives both petitioner's position and the law. It is suggested that petitioner concedes that "(t)he District Court's refusal to certify was subject to appellate review after final judgment at the behest of the named plaintiffs. . . . " Ante, at 393. But petitioner concedes only that the named plaintiffs could have appealed the denial of class status if they had chosen to litigate the case to a final judgment rather than to settle it. It argues with great force that, as a result of the settlement of their individual claims, the named plaintiffs "could no longer appeal the denial of class" status that had occurred years earlier. Brief for Petitioner 15. Although this question has not been decided by this Court,3 the answer on principle is clear. The settlement of an individual claim typically moots any issues associated with it. 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3533, p. 271 (1975). This case is sharply distinguishable from cases such as Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), and Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), where we allowed named plaintiffs whose individual claims were moot to continue to represent their classes. In those cases, the District Courts previously had certified the classes, thus giving them "a legal status separate from the interest(s) asserted by (the named plaintiffs)." Sosna v. Iowa, supra, at 399, 95 S.Ct. at 557. This case presents precisely the opposite situation: The prior denial of class status had extinguished any representative capacity.
29
Considerations of policy militate strongly against the result reached by the Court. Our cases reflect a long tradition of respect for statutes of limitations and the values they serve. These legislative enactments "are vital to the welfare of society and are favored in the law," because they "promote repose by giving security and stability to human affairs" and "stimulate to activity and punish negligence." Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879). When a "plaintiff has slept on his rights," an otherwise meritorious claim is barred, both to ensure "fairness to defendants" and to relieve "the burden (on the courts) of trying stale claims." Burnett v. New York Central R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965). Statutes of limitations thus "make an end to the possibility of litigation after the lapse of a reasonable time." Guaranty Trust Co. v. United States, 304 U.S. 126, 136, 58 S.Ct. 785, 790, 82 L.Ed. 1224 (1938). The Court nevertheless has reached a decision that rewards those who delay asserting their rights. I view the result as an injustice to petitioner and as a precedent that ill serves the need for repose.
30
The Court also ignores the important "principle that '(s)ettlement agreements are highly favored in the law and will be upheld whenever possible because they are a means of amicably resolving doubts . . . and preventing lawsuits.' " Pearson v. Ecological Science Corp., supra, 522 F.2d, at 176, quoting D. H. Overmyer Co. v. Loflin, 440 F.2d 1213, 1215 (C.A.5 1971). Settlements particularly serve the public interest "within the confines of Title VII where 'there is great emphasis . . . on private settlement and the elimination of unfair practices without litigation.' " Air Lines Stewards v. American Airlines, Inc., 455 F.2d 101, 109 (C.A.7 1972), quoting Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (C.A.5 1968). Today's decision will deter settlements because of the additional uncertainty as to whether the agreements will be nullified by the action of persons who enter the litigation only after final judgment.4
31
In support of its decision, the Court suggests that adherence to the American Pipe rule might result in precautionary interventions to guard against the possibility that the named plaintiffs would fail to appeal the denial of class status, thus producing the very " 'multiplicity of activity which Rule 23 was designed to avoid.' " Ante, at 394 n. 15, quoting American Pipe 414 U.S., at 553, 94 S.Ct., at 766. But, as I have shown, Rule 23 was not designed to eliminate any multiplicity of activity after class status is denied.5
32
In my view, the proper analysis of these questions is as follows: Under American Pipe, the filing of a class action complaint tolls the statute of limitations until the District Court makes a decision regarding class status. If class status is denied in whole or in part, the statute of limitations begins to run again as to class members excluded from the class. In order to protect their rights, such individuals must seek to intervene in the individual action (or possibly file an action of their own) before the time remaining in the limitations period expires. Assuming that intervention is sought within the limitations period, the district court's decision whether to allow intervention is made according to the discretionary timeliness concept of Rule 24, as interpreted by NAACP v. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973). This decision is made in light of all of the circumstances in the case and is entitled to substantial deference on appeal. But delay in seeking intervention should militate against allowing intervention. Under this approach, a premium is placed on attempting to intervene as soon as possible after the denial of class status. When combined with the requirement of Rule 23(c)(1) that the decision as to class status be made "(a)s soon as practicable after the commencement of an action brought as a class action," this approach would ensure that the contours of the nonclass action would be defined early in the litigation. This would enable the major decisions concerning the case to be made expeditiously, thus speeding its ultimate resolution. The Court's decision today encourages the opposite result.
1
See generally Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1197-1201 (C.A.7).
2
The relevant statutory provision at that time, 42 U.S.C. § 2000e-5(e), stated that if within 30 days after a charge was filed with the Commission or within 30 days after expiration of a period of reference of the charge to a state or local fair employment agency, the Commission had been unable to secure voluntary compliance, it "shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought" by the charging party. The period was extended to 90 days in 1972. § 2000e(f)(1) (1970 ed., Supp. V).
3
Rule 23(a)(1) lists as one prerequisite to maintenance of a class action that "the class is so numerous that joinder of all members is impracticable."
4
In the Seventh Circuit, a denial of class certification is an interlocutory order not reviewable as of right until after entry of final judgment. Anschul v. Sitmar Cruises, Inc., 544 F.2d 1364. Even were we to assume, arguendo, that the Seventh Circuit is wrong in not recognizing the so-called death-knell doctrine, which permits immediate appeal of adverse class determinations where the claims, are so small that individual suits are uneconomical, appeal before final judgment would not have been available in this lawsuit, for the individual claims were sufficiently large to permit the action to proceed, as it did, on an individual basis. See generally 7A C. Wright & A. Miller, Federal Practice and Procedure § 1802, pp. 271-277 (1972); id., at 129-130 (Supp.1977).
5
In Sprogis, following affirmance by the Court of Appeals of the District Court's finding of liability, the case was remanded for further proceedings. The Special Master appointed by the District Court recommended that the plaintiff be awarded over $10,000 in damages, the District Court approved that award, and the Court of Appeals affirmed. See Sprogis v. United Air Lines, Inc., 517 F.2d 387, 389-390, 392 (CA 7).
6
As the opinion in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280, makes clear, full relief under Title VII "may be awarded on a class basis . . . without exhaustion of administrative procedures by the unnamed class members." Id., at 414 n. 8, 95 S.Ct., at 2370. See also Franks v. Bowman Transportation Co., 424 U.S. 747, 771, 96 S.Ct. 1251, 1267, 47 L.Ed.2d 444.
7
See Fed.Rule App.Proc. 4(a).
8
In relevant part, Rule 24(b) provides:
"Upon timely application anyone may be permitted to intervene in an action . . . when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."
9
See 414 U.S., at 541-542, 94 S.Ct., at 760.
10
See n. 3, supra.
11
A person complaining of employment discrimination is ordinarily required to file a charge with the EEOC within 180 days of the occurrence of the discriminatory act. 42 U.S.C. § 2000e-5(e) (1970 ed., Supp. V). Once the administrative process has been exhausted and the EEOC sends the complainant a right-to-sue letter, a civil action in federal district court must be filed within 90 days of receipt of the right-to-sue letter. § 2000e-5(f)(1) (1970 ed., Supp. V), discussed in n. 2, supra. Since nearly three years passed after the adverse class determination before the respondent took any action, under United's theory her action is time barred whichever of the two limitations periods is thought to be the relevant one.
12
Cf. Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 727 (1968) ("It is both feasible and desirable to break down the concept of intervention into a number of litigation rights and to conclude that a given person has one or some of these rights but not all").
13
The unlawful discrimination alleged in the complaint enforcement of the no-marriage rule was plainly part of a uniform companywide policy that had been applied to all stewardesses. See also S.Rep.No.92-415, p. 27 (1971) ("(T)itle VII actions are by their very nature class complaints"), cited in Albemarle Paper Co. v. Moody, 422 U.S., at 414 n. 8, 95 S.Ct, at 2370 n. 8.
14
See, e. g., Share v. Air Properties G., Inc., 538 F.2d 279, 283 (C.A.9); Zenith Laboratories, Inc. v. Carter-Wallace, Inc., 530 F.2d 508, 512 (C.A.3); Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1188-1190 (C.A.10); Bailey v. Ryan Stevedoring Co., 528 F.2d 551, 553-554 (C.A.5); Wright v. Stone Container Corp., 524 F.2d 1058, 1061-1063 (C.A.8); Paton v. La Prade, 524 F.2d 862, 874-875 (C.A.3); Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1162-1165 (C.A.7); Galvan v. Levine, 490 F.2d 1255, 1260-1262 (C.A.2); Roberts v. Union Co., 487 F.2d 387 (C.A.6); Esplin v. Hirschi, 402 F.2d 94 (C.A.10).
United argues that it was unfairly surprised when after having settled the case with all of the original and intervening plaintiffs it nonetheless faced an appeal, and suggests that the negotiation of settlements will be impeded if post-judgment intervention like the respondent's is permitted. The characterization of the resolution of the Romasanta action as a "settlement" could be slightly misleading. It is of course true that opposing counsel agreed upon a disposition that resulted in dismissal of the complaints. But that agreement came only after the District Judge had granted motions by some plaintiffs for partial summary judgment, and, there was never any question about United's liability in view of the Sprogis decision. All that remained to be determined was the computation of backpay, and the guiding principles for that computation had been established in Sprogis. The "settlement" ultimately reached merely applied those principles to the claims in this case.
The respondent's motion to intervene was filed less than three weeks after the "settlement" was incorporated in the District Court's final judgment, and necessarily "concern(ed) the same evidence, memories, and witnesses as the subject matter of the original class suit." American Pipe & Construction Co. v. Utah, 414 U.S. 538, 562, 94 S.Ct. 756, 770, 38 L.Ed.2d 713 (BLACKMUN, J., concurring). There is no reason to believe that in that short period of time United discarded evidence or was otherwise prejudiced.
15
A rule requiring putative class members who seek only to appeal from an order denying class certification to move to intervene shortly after entry of that order would serve no purpose. Intervention at that time would only have made the respondent a superfluous spectator in the litigation for nearly three years, for the denial of class certification was not appealable until after final judgment, see n. 4, supra. Moreover, such a rule would induce putative class members to file protective motions to intervene to guard against the possibility that the named representatives might not appeal from the adverse class determination. Cf. American Pipe, supra, at 553, 94 S.Ct. at 766. The result would be the very "multiplicity of activity which Rule 23 was designed to avoid." 414 U.S., at 551, 94 S.Ct., at 765. Cf. Franks v. Bowman Transportation Co., 424 U.S., at 757 n. 9, 76 S.Ct., at 1260.
16
A case closely in point is American Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co., 3 F.R.D. 162 (S.D.N.Y.). That case involved a plan for reorganization of the Interborough Rapid Transit Co. and for its consolidation with the Manhattan Elevated Railway. Mannheim, an owner of a series of bonds in the Manhattan Railway, had participated in the District Court not merely representing his own interests but also acting as "attorney in fact" for other owners of the bonds. After the District Court had approved the plan as fair and equitable, and had subsequently ordered its implementation, Mannheim filed a notice of appeal. He then decided to abandon the appeal and to seek to surrender his bonds pursuant to the terms of the plan. One of the other holders of the same series of bonds, for whom Mannheim had been acting as attorney-in-fact, then moved to intervene for the purpose of prosecuting an appeal on behalf of herself and all other nonsurrendering bondholders. Noting that it is "essential in the administration of our system of justice, that litigants should have their day in court" and that the motion was filed within the time in which an appeal might have been brought, the District Court ruled that the motion to intervene was timely. Id., at 164.
The decision in Pellegrino v. Nesbit, 203 F.2d 463 (C.A.9), is also similar to the case at bar. There a corporation had filed an action against corporate officers under § 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b), for recovery of short-swing profits. The District Court entered judgment for the defendants, and when the corporation failed to appeal, a shareholder sought to intervene for the purpose of appealing from the District Court decision. The Court of Appeals, reversing the District Court, ruled that the motion was timely and the intervention should have been permitted. 203 F.2d, at 465-466.
Post-judgment intervention for the purpose of appeal has been found to be timely even in litigation that is not representative in nature, and in which the intervenor might therefore be thought to have a less direct interest in participation in the appellate phase. See, e. g., Hodgson v. United Mine Workers, 153 U.S.App.D.C. 407, 417-419, 473 F.2d 118, 129; Smuck v. Hobson, 132 U.S.App.D.C. 372, 378-379, 408 F.2d 175, 181-182; Zuber v. Allen, 128 U.S.App.D.C. 297, 387 F.2d 862, discussed in Hobson v. Hansen, 44 F.R.D. 18, 29-30, n. 10 (D.C.); Wolpe v. Portesky, 79 U.S.App.D.C. 141, 144, 144 F.2d 505, 508; United States Casualty Company v. Taylor, 64 F.2d 521, 526-527 (C.A.4).
Insofar as the motions to intervene in these cases were made within the applicable time for filing an appeal, they are consistent with our opinion and judgment in the present case.
1
Respondent had been terminated by petitioner in September 1968, under its then-existing "no marriage" rule for stewardesses. The class action complaint in Romasanta v. United Airlines was filed in May 1970. The District Court denied class status in December 1972, and a number of the members of the putative class intervened in the individual action. Discovery and settlement discussion followed, and the initial and intervening plaintiffs were able to settle their claims. On October 3, 1975 almost three years after class status was denied a final order dismissing the suit with prejudice was entered, all "matters in controversy . . . having been settled and resolved." App. 90-92. On October 21, 1975, respondent moved to intervene for purposes of appealing the denial of class status. Before this point, she had filed no grievance under the collective-bargaining agreement, no charge with any state or federal agency, and had taken no part in the preceding litigation although she was fully aware of the entire situation.
2
The Court quotes from Philadelphia Electric Company v. Anaconda American Brass Co., 43 F.R.D. 452, 461 (E.D.Pa.1968), for the proposition that a case need not " 'be treated as if there never was an action brought on behalf of absent class members.' " Ante, at 393. Philadelphia Electric involved the same issue ultimately resolved by this Court in American Pipe and is otherwise irrelevant to the question now before us.
3
None of the cases cited by the Court, ante, at 393 n. 14, involves this situation.
4
As Judge Pell noted, respondent's delay in seeking intervention was especially costly in this case:
"It is important to note that had she sought intervention immediately after the denial of class status, and her intervention had been denied, the intervention issue would have been before this court three years ago. Furthermore, assuming that her intervention had been denied because of petitioner's failure to protest the no-marriage rule the requirement which was the basis of the court's holding that this action lacked the requisite numerosity to proceed as a class action then that issue would have been before this court and decided three years ago. Instead, petitioner chose to sit back and allow others to assume the costs and risks in prosecuting their individual actions and now she attempts to revive her dead claim through another suit which after years of legal argument and negotiation was finally settled to the satisfaction of all parties." 537 F.2d, at 922 (dissenting opinion).
5
Moreover, precautionary intervention is likely even under the Court's decision. As in American Pipe itself, individuals concerned about their claims will frequently move to intervene as plaintiffs in the nonclass action rather than placing all of their hopes on the possibility that the denial of class status will be reversed on appeal.
| 89
|
432 U.S. 416
97 S.Ct. 2399
53 L.Ed.2d 448
Richard A. BATTERTON, etc., et al., Petitioners,v.Robert FRANCIS, etc., et al.
No. 75-1181.
Argued April 19, 1977.
Decided June 20, 1977.
Syllabus
Section 407(a) of the Social Security Act delegates to the Secretary of Health, Education, and Welfare the power to prescribe "standards" for determining what constitutes "unemployment" for purposes of eligibility for benefits under the Aid to Families with Dependent Children-Unemployed Fathers (AFDC-UF) program. Pursuant to § 407(a), the Secretary promulgated a regulation authorizing participating States, within their discretion, to exclude from the definition of an unemployed father one "whose unemployment results from participation in a labor dispute or who is unemployed by reason of conduct or circumstances which result or would result in disqualification for unemployment compensation under the State's unemployment compensation law." In class actions on behalf of families who were denied AFDC-UF benefits under a state rule because the fathers' unemployment resulted from discharges for misconduct, involvement in a strike, or voluntarily quitting their jobs, the courts below held the federal regulation invalid as exceeding the Secretary's statutory authority. Held : The regulation is a proper exercise of the Secretary's statutory authority and is reasonable. Pp. 424-432.
(a) Since the statute expressly delegated to the Secretary the power to prescribe standards for determining what constitutes "unemployment" for purposes of AFDC-UF eligibility, a reviewing court is not free to set aside the regulation simply because it would have interpreted the statute in a different manner from the Secretary, but only if the Secretary exceeded his statutory authority or the regulation is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Pp. 424-426.
(b) By allowing the States to exclude persons who would be disqualified under the State's unemployment compensation law, the Secretary has incorporated a well-known and widely applied standard for "unemployment," and exclusion of individuals who are out of work as a result of their own conduct and thus disqualified from state unemployment compensation is consistent with the goal of AFDC-UF, namely, to aid the families of the involuntarily unemployed. Pp. 426-429.
(c) The power to prescribe "standards" for determining what constitutes "unemployment" gives the Secretary sufficient flexibility to recognize local options in determining AFDC-UF eligibility, including the option of denying unemployment compensation benefits to participants in a labor dispute. While the congressional purpose was to promote greater uniformity in the application of the AFDC-UF program, such goal can be met without imposing identical standards on each State, and hence the Secretary's approach does not defeat the statute's purpose. Pp. 429-432.
529 F.2d 514 and 515, reversed.
Joel J. Rabin, Baltimore, Md., for petitioners.
C. Christopher Brown, Baltimore, Md., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case concerns the validity of 45 CFR § 233.100(a)(1) (1976),1 a regulation promulgated by the Secretary of Health, Education, and Welfare (HEW) pursuant to a delegation of rulemaking authority in § 407(a) of the Social Security Act, 42 U.S.C. § 607(a).2 The issue is whether the regulation is a proper exercise of the Secretary's statutory authority.
2
* The statute is contained in the Social Security Act's Title IV, which has to do primarily with Aid to Families with Dependent Children (AFDC). The AFDC program was established by the Act in 1935 to provide welfare payments where children are needy because of the death, absence, or incapacity of a parent. 42 U.S.C. § 606(a). The original conception of AFDC was to allow widows and divorced mothers to care for their children at home without having to go to work, thus eliminating the practice of removing needy children in situations of that kind to institutions. See Burns v. Alcala, 420 U.S. 575, 581-582, 95 S.Ct. 1180, 1184-1185, 43 L.Ed.2d 469 (1975). AFDC was not originally designed to assist children who are needy simply because the family breadwinner is unable to find work; it was contemplated that other programs would alleviate that problem by attacking unemployment directly. See Carleson v. Remillard, 406 U.S. 598, 603, 92 S.Ct. 1932, 1935, 32 L.Ed.2d 352 (1972); King v. Smith, 392 U.S. 309, 313, 327-329, 88 S.Ct. 2128, 2131, 2138-2139, 20 L.Ed.2d 1118 (1968). Other parts of the Act encouraged the establishment of state unemployment compensation programs, primarily through tax incentives, but the federal role in these programs is not so great as in AFDC. See Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977).
3
Title IV was amended in 1961 to add § 407. Pub.L. 87-31, § 1, 75 Stat. 75. This section established an experimental program (AFDC-UF)3 to provide assistance in some cases where the unemployment of a parent causes dependent children to be needy. The States were given broad power to define "unemployment" for purposes of the program and to determine the relationship of this new program to existing state unemployment compensation plans. In 1968 the AFDC-UF program was made permanent, 81 Stat. 882, but the eligibility criteria were modified to withdraw some of the definitional authority delegated to the States. The statute now requires a participating State to provide assistance where a needy child "has been deprived of parental support or care by reason of the unemployment (as determined in accordance with standards prescribed by the Secretary) of his father." 42 U.S.C. § 607(a). See Philbrook v. Glodgett, 421 U.S. 707, 709-711, 95 S.Ct. 1893, 1896-1897, 44 L.Ed.2d 525 (1975).4
4
Both AFDC and AFDC-UF are cooperative ventures of the Federal Government and the States. States that elect to participate in these programs administer them under federal standards and HEW supervision. Funding is provided from state and federal revenues on a matching basis. See, e. g., Shea v. Vialpando, 416 U.S. 251, 253, 94 S.Ct. 1746, 1750, 40 L.Ed.2d 120 (1974); King v. Smith, 392 U.S., at 316, 88 S.Ct., at 2132. Although every State currently participates in AFDC, only about half the States participate in the AFDC-UF program. Dept. of HEW, Public Assistance Statistics, Oct. 1976, table 5, p. 9 (1977).
II
5
The instant case originated in 1971 as a challenge to Rule 200.X.(A)(2) of the Maryland Department of Employment and Social Services. That Rule denies AFDC-UF benefits to families where the father is out of work for reasons that disqualify him for state unemployment insurance compensation.5 The original plaintiffs represented two classes of families with dependent children who were thereby ineligible for AFDC-UF benefits: one where the father had been discharged for misconduct (excessive absenteeism), and the other where the father was out of work because of a strike. The defendants were Maryland officials having responsibility for the administration of public assistance grants in the State. A three-judge United States District Court was convened to consider the claim that Rule 200.X.(A)(2) violated the Equal Protection Clause of the Fourteenth Amendment. The court sustained the constitutionality of the state regulation but went on to hold it invalid because it was contrary to the federal regulation prescribing standards for the determination of unemployment under the AFDC-UF program. Francis v. Davidson, 340 F.Supp. 351 (Md.), summarily aff'd, 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972) (Francis I ). Although HEW did not agree that its regulation was inconsistent with Rule 200.X.(A)(2), the Solicitor General, in his memorandum for the United States as amicus curiae, filed in Francis I at this Court's invitation, 408 U.S. 920, 92 S.Ct. 2495, 33 L.Ed.2d 330 (1972), suggested a summary affirmance in that case in light of the then-forthcoming revision of the HEW regulation.
6
The HEW regulation, as amended, expressly, authorizes some state discretion in defining unemployment. Generally, it requires the States to consider a person to be unemployed for AFDC-UF purposes if he works less than 100 hours a month, except for intermittent employment, and "except that, at the option of the State, such definition need not include a father whose unemployment results from participation in a labor dispute or who is unemployed by reason of conduct or circumstances which result or would result in disqualification for unemployment compensation under the State's unemployment compensation law." 45 CFR § 233.100(a)(1) (1976). The Secretary had stated that the purpose of this amendment was to nullify the effect of Francis I by making explicit the HEW policy of allowing the States to exclude AFDC-UF participants based on the particular reason that the father was out of work.6
7
After the amended HEW regulation became effective, the defendant Maryland officials moved that the District Court dissolve its earlier injunction issued March 16, 1972, after Francis I had been decided, against enforcement of Rule 200.X.(A)(2). That court recognized that "(t)he conflict between the federal and the Maryland regulation ended after the former was amended," but nevertheless it denied the motion and continued the injunction on the ground that the amended federal regulation now was in conflict with the federal statute. Francis v. Davidson, 379 F.Supp. 78, 81 (Md.1974) (Francis II ). First, with regard to the class of fathers discharged for misconduct, the District Court stated that these people are necessarily "unemployed," within the meaning of the statute, and that any contrary regulation is invalid. Second, the court recognized that it is not clear whether the statutory term "unemployed" includes persons involved in a labor dispute. The court held, however, that the HEW regulation was invalid in this regard because it delegated the question of coverage to the States without providing a uniform national standard. Id., at 81-82.
8
After this Court dismissed a direct appeal in Francis II for want of jurisdiction, 419 U.S. 1042, 95 S.Ct. 614, 42 L.Ed.2d 636 (1974), appeals were taken by the state defendants and by the Chamber of Commerce of the United States, as intervenor, to the United States Court of Appeals for the Fourth Circuit. There the case was consolidated with an appeal in a similar case. Bethea v. Mason, 384 F.Supp. 1274 (Md.1974), where a single District Judge had followed Francis II in holding the same HEW regulation invalid insofar as it authorized the State to deny AFDC-UF benefits to fathers who had voluntarily quit their previous jobs.
9
The Fourth Circuit affirmed the three appeals in an unpublished per curiam adopting the respective opinions of the two District Judges. See 529 F.2d 514 and 515 (1975). The state defendants petitioned for certiorari, contending that the current HEW regulation is authorized by the federal statute and that the injunction against the state regulation therefore should be dissolved.7 The Solicitor General, at the invitation of the Court, 425 U.S. 969, 96 S.Ct. 2164, 48 L.Ed.2d 792 (1976), filed a memorandum for the United States as amicus curiae, supporting the state defendants' position. We granted certiorari. 429 U.S. 939, 97 S.Ct. 352, 50 L.Ed.2d 307 (1976).
III
10
The ultimate question in this case is whether the statutory term "unemployment" may be interpreted to allow the State to exclude the three classes of respondents from receiving AFDC-UF benefits. There can be no doubt that 45 CRF § 233.100(a)(1) (1976) embodies that interpretation. Thus, the actual issue we must decide is not how the statutory term should be interpreted, but whether the Secretary's regulation is proper.
11
(1-3) Ordinarily, administrative interpretations of statutory terms are given important but not controlling significance. This was the Court's approach, for example, when it had under consideration the question whether the term "wages" in Title II of the Social Security Act included a backpay award. Social Security Board v. Nierotko, 327 U.S. 358, 369, 66 S.Ct. 637, 643, 90 L.Ed. 718 (1946).8
12
Unlike the statutory term in Title II, however, Congress in § 407(a) expressly delegated to the Secretary the power to prescribe standards for determining what constitutes "unemployment" for purposes of AFDC-UF eligibility. In a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term. In exercising that responsibility, the Secretary adopts regulations with legislative effect. A reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different manner. American Telephone & Telegraph Co. v. United States, 299 U.S. 232, 235-237, 57 S.Ct. 170, 172, 81 L.Ed. 142 (1936).9
13
The regulation at issue in this case is therefore entitled to more than mere deference or weight. It can be set aside only if the Secretary exceeded his statutory authority or if the regulation is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §§ 706(2) (A), (C).10
IV
14
(4) We turn now to the grounds on which the District Courts and the Court of Appeals held the regulation invalid, keeping in mind the narrow scope of review that is indicated in this situation.
15
These courts held that the Secretary exceeded his statutory authority to prescribe standards, in the first place, because he permitted the determination of eligibility to turn in part on the reason for the father's unemployment. The language of § 407(a) was thought to make the only relevant consideration that of whether, not why, the father was out of work:
16
" 'A man out of work because he was discharged for cause by his employer is unemployed. There can be no two ways about that conclusion'. . . . (N)o combination of federal and state regulations may provide that a father who is unemployed is not unemployed." Francis II, 379 F.Supp., at 81, quoting Francis I, 340 F.Supp., at 366.
17
And in Bethea the court by like reasoning held that a person who voluntarily quit his job is to be considered unemployed within the meaning of the statute. 384 F.Supp., at 1280-1281.
18
We do not agree that the statutory language is so unambiguous. The term "unemployment" is often used in a specialized context where its meaning is other than simply not having a job. For example, the concept of unemployment is frequently limited to persons who have some connection with the work force, that is, individuals who desire to work and are capable of working, and who, usually but not always, have held jobs in the past. In addition, the feature of involuntariness is often linked with unemployment. Limitations of this nature are found in the definitions used by the Department of Labor in compiling unemployment statistics.11 State unemployment compensation programs generally confine their benefits in this manner.12 Indeed, the other provisions of s 407 impose similar limitations, indicating that the AFDC-UF program was not intended to provide assistance without regard to the reason a person is out of work.13
19
Thus, we conclude that the statutory term is capable of more than the tautological definition imposed by the District Judges and the Court of Appeals. Congress itself must have appreciated that the meaning of the statutory term was not self-evident, or it would not have given the Secretary the power to prescribe standards.
20
Respondents argue, however, that Congress intended that the Secretary prescribe an "hours-worked" standard for determining unemployment but did not intend any further additions to the eligibility criteria specified in other provisions of the statute. In fact, a minimum hours-worked standard is part of the regulation at issue in this case, but there is no indication in the statutory language or legislative history that Congress intended to foreclose other factors in the determination of what constitutes unemployment for purposes of the AFDC-UF program.
21
Of course, the Secretary's statutory authority to prescribe standards is not unlimited. He could not, for example, adopt a regulation that bears no relationship to any recognized concept of unemployment or that would defeat the purpose of the AFDC-UF program. But the regulation here at issue does not even approach these limits of the delegated authority. By allowing the States to exclude persons who would be disqualified under the State's unemployment compensation law, the Secretary has incorporated a well-known and widely applied standard for "unemployment." Exclusion of individuals who are out of work as a result of their own conduct and thus disqualified from state unemployment compensation is consistent with the goal of AFDC-UF, namely, to aid the families of the involuntarily unemployed.14 On the other hand, state unemployment benefits are ordinarily available only after a waiting period and only for a limited number of weeks or months. By providing benefits during the periods before and after state unemployment compensation is available, AFDC-UF fills a significant gap in social insurance coverage.15 Thus we cannot say that the Secretary's regulation defeats the purpose of the AFDC-UF program.
22
We therefore hold that the HEW regulation, to the extent it allows the States to determine that persons disqualified under unemployment compensation laws are not "unemployed" under § 407(a), is within the statutory authority delegated to the Secretary, and is reasonable.
V
23
(5, 6) The second stated reason for the District Judges' and Court of Appeals' holding that the Secretary's regulation was invalid was that it permitted the States the option of denying unemployment compensation benefits to participants in a labor dispute.16 Although the holding is not entirely clear to us, it appears that what was regarded as fatal was the Secretary's failure to impose sufficient standards to control the States' decisions under this optional feature.17 Presumably, the same rationale would provide an alternative basis for holding the regulation invalid to the extent it allows States the uncontrolled option of denying benefits to persons who were discharged for cause or had voluntarily quit their jobs.
24
It is clear that a major purpose of the 1968 amendment was to retract some of the authority previously delegated to the States under § 407(a). Philbrook v. Glodgett, 421 U.S., at 710, 95 S.Ct., at 1896. We, however, do not think this shift of authority from the States to the Secretary required the Secretary to adopt a regulation that precludes any recognition of local policies. If Congress had intended such a result, it might have changed the statutory language from "unemployment (as defined by the State)" to "unemployment (as defined by the Secretary)." Instead, § 407(a) now reads "unemployment (as determined in accordance with standards prescribed by the Secretary)." The power to "determine" unemployment remains with the States, and we conclude that the power to prescribe "standards" gives the Secretary sufficient flexibility to recognize some local options in determining AFDC-UF eligibility.
25
The legislative history, we acknowledge, is at some variance with the statutory language. The effect of the 1968 amendment is described as to "provide for a uniform definition of unemployment throughout the United States," and as to "authorize a Federal definition of unemployment by the Secretary." S.Rep. No. 744, 90th Cong., 1st Sess., 3-4, 160; U.S.Code Cong. & Admin.News 1967, pp. 2834, 2997 (1967). See H.R.Rep. No. 544, 90th Cong., 1st Sess., 3, 17, 108 (1967); 113 Cong.Rec. 32592 (1967) (remarks of Sen. Long). We do not understand these comments to mean, however, that the Secretary is prohibited from allowing the States any options in determining whether or not a person is "unemployed" for purposes of the AFDC-UF program. First, the legislative history cannot be read literally in its claim that the amended statute itself provides a federal definition of unemployment; at best the statute delegates to the Secretary the power to prescribe such a definition. Second, we have no quarrel with the statements in the legislative history that the Secretary is authorized to adopt such a uniform definition; we simply hold that he is not required to do so.
26
Certainly, the congressional purpose was to promote greater uniformity in the applicability of the AFDC-UF program. But the goal of greater uniformity can be met without imposing identical standards on each State. In one case, for example, a State was permitted to adopt a somewhat more liberal hours-worked test than the minimum required by the Secretary. Macias v. Finch, 324 F.Supp. 1252 (ND Cal.), summarily aff'd, 400 U.S. 913, 91 S.Ct. 180, 27 L.Ed.2d 153 (1970). We conclude, therefore, that the Secretary's approach in the present case is not contrary to the purpose of the statute.
27
Our conclusion is reinforced by our understanding of the AFDC-UF program as involving the concept of cooperative federalism. The States are free not to participate in the program, and, as we have noted, only about half of them in fact do so. The congressional purpose is not served at all in those States where AFDC-UF is totally unavailable. Accordingly, we should not lightly infer a congressional intention to preclude the Secretary from recognizing legitimate local policies in determining eligibility. See New York Dept. of Soc. Services v. Dublino, 413 U.S. 405, 413-414, 421-422, 93 S.Ct. 2507, 2512-2513, 2516-2517, 37 L.Ed.2d 688 (1973).
28
We therefore hold that 45 CFR § 233.100(a)(1) (1976) adequately promotes the statutory goal of reducing interstate variations in the AFDC-UF program. In this respect, the regulation is both reasonable and within the authority delegated to the Secretary.
29
The judgment of the Court of Appeals is reversed.
30
It is so ordered.
31
Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS, join, dissenting.
32
The regulation under review in this case, 45 C.F.R. § 233.100(a)(1) (1976), provides that for purposes of the AFDC-UF program, the definition of unemployment need not include, "at the option of the State," a father whose unemployment results from a labor dispute or some conduct that would disqualify him under the State's unemployment compensation law. (Emphasis added.) The Court today sustains this regulation notwithstanding its recognition that "a major purpose of the 1968 amendment was to retract some of the authority previously delegated to the States under § 407(a)." Ante, at 430. The Court reasons, without citation to legislative authority, that "the goal of greater uniformity can be met without imposing identical standards on each State." Ante, at 431. Contrary to the majority, I do not believe that the legislative history reflects a congressional intent to achieve merely "greater uniformity" in the definition of unemployment; the legislative record plainly reveals that Congress contemplated a federal definition of unemployment applicable to all States that adopt the AFDC-UF program. Since I do not believe that the subject regulation conforms to this congressional mandate, I would affirm the judgment of the Court of Appeals.
33
The Court acknowledges that the legislative history is "at some variance" with its position. Ante, at 430. This understates the case; literally all of the relevant legislative history repeatedly and unequivocally affirms the strong congressional objective of creating a federal definition of unemployment. It is common ground that Congress changed the wording of § 407(a) from "unemployment (as defined by the State)" to "unemployment (as determined in accordance with standards prescribed by the Secretary)" for the express purpose of "eliminat(ing) the variations in state definitions of unemployment." Philbrook v. Glodgett, 421 U.S. 707, 719, 95 S.Ct. 1893, 1901, 44 L.Ed.2d 525 (1975). But the Court would have us believe that the statute nevertheless contemplates a regulation leaving it completely within state discretion whether to cover those not working by reason of labor disputes or because of discharge for cause.* In my view, this is flatly contrary to the thrust of the legislative history, which bears some recitation.
34
In the Senate, most of the work on the 1968 amendments was done by the Finance Committee. That Committee reported that the bill would
35
"(e) modify the optional unemployed fathers program to provide for a uniform definition of unemployment throughout the United States." S.Rep. No. 744, 90th Cong., 1st Sess., 4 (1967); U.S.Code Cong. & Admin.News 1967, pp. 2834, 2837 (emphasis added).
36
"A major characteristic of the existing law is the authority left to the States to define 'unemployment.' The committee believes that this has worked to the detriment of the program because of the wide variation in the definitions used by the States. In some instances, the definitions have been very narrow so that only a few people have been helped. In other States, the definitions have been relatively broad. The committee bill is designed to correct this situation and to make other improvements in the program.
37
"The amendments proposed by the committee would authorize a Federal definition of unemployment by the Secretary . . . ." Id., at 160 U.S.Code Cong. & Admin.News 1967, p. 2996. (emphasis added).
38
The Ways and Means Committee, which carried the legislation in the House, adopted the same view:
39
"Under present law . . . (t)he definition of unemployment is left up to the individual States. Under the bill . . . the definition of unemployment would be made by the Federal Government." H.R.Rep. No. 544, 90th Cong., 1st Sess., 17 (1967) (emphasis added).
40
See also id., at 3, 108 (using language almost identical to that adopted by the Senate Finance Committee, S.Rep. No. 744, supra, at 3-4, 160).
41
The Undersecretary of HEW, Wilbur J. Cohen, expressed his Department's view that the new legislation would require a uniform national standard:
42
"Today, 22 States have programs to assist (children who are needy because their fathers are unemployed). But the differences between State programs are great. States may define unemployment as narrowly or broadly as they wish, requiring substantial previous work experience or no work experience. This variation in definition of unemployment is shown clearly by three adjacent Southwestern States, Arizona, Utah, and Colorado. Each of these States has a population of between 1 and 2 million, yet in Arizona only 19 families of unemployed parents received AFDC in May, while during the same month there were 880 in Utah and 1,600 in Colorado. Arizona's narrow definition of unemployment has kept its program to a token level.
43
"The House bill continues to allow States to choose whether they will include dependent children of unemployed parents under AFDC. But for the first time the House will set a Federal definition of unemployment. We are in complete agreement that there should be a Federal definition of unemployment established by the Congress and the Secretary." Hearings on H.R. 12080 before the Senate Committee on Finance, 90th Cong., 1st Sess., 268 (1967) (emphasis added).
44
The members of the Senate Finance Committee expressed no doubt as to the meaning of the Undersecretary's remarks: "Senator Williams: I notice you say you are in complete agreement that there should be a Federal definition of unemployment." Id., at 269 (emphasis added).
45
Finally, after the enactment of the 1968 amendments, the Senate Finance Committee was unequivocal in summing up the amendments to the unemployed fathers provisions: "The amendments provide for a Federal definition of unemployment for States which have AFDC-UF programs." Senate Committee on Finance, 90th Cong., 2d Sess., Report on Social Security Amendments of 1967 Pub.L. 248, Brief Summary of Major Provisions and Detailed Comparison with Prior Law 3 (July 15, 1968) (emphasis added). See also id., at 63 ("Unemployment will be defined by the Secretary of Health, Education, and Welfare"); 113 Cong.Rec. 23054 (1967) (remarks of Rep. Mills) ("(W)e found . . . that the fact that the definition of unemployment is left to the States has had unfortunate results. . . . The Bill would correct this situation"); id., at 32592 (remarks of Sen. Long) ("(T)here would be a Federal definition of 'unemployment' "); id., at 36373-36374 ("(T)he Secretary will prescribe standards for the determination of what constitutes unemployment. The term is defined by the States under present law"); Senate Committee on Finance and House Committee on Ways and Means, 90th Cong., 1st Sess., Report on Summary of Social Security Amendments of 1967, p. 17 (Comm. Print 1967) ("(T)he Secretary will prescribe standards for the determination of what constitutes unemployment").
46
Unlike the majority, I have no doubt that the legislative history means what it says and confines the regulatory authority of the Secretary; by amending § 407(a) to place the responsibility for defining unemployment on the Secretary, Congress intended to establish "a uniform definition of unemployment throughout the United States." S.Rep.No.744, supra, at 4; U.S.Code Cong. & Admin.News 1967, p. 2837; H.R.Rep.No.544, supra, at 3. While I agree with the majority that this Court should defer to any reasonable definition given by the Secretary to the term "unemployment," I cannot agree, in light of the legislative history, that the Secretary may simply delegate the responsibility for defining that term to the States, for in important respects this would simply return the law to the situation existing prior to the amendment defining that term to the States. Here, the Secretary has promulgated a regulation describing a rather broad category of individuals who may be eligible for AFDC-UF benefits but has then permitted the States to include or exclude those individuals from eligibility "at the option of the State." Contrary to the obvious intent of Congress, this leaves to state discretion the coverage of important categories of claimants and invites the very diversity in coverage that the 1968 amendment was designed to prevent. I cannot believe that this regulation conforms to the statutory purpose. Accordingly, I respectfully dissent.
1
"s 233.100 Dependent children of unemployed fathers.
"(a) Requirements for State Plans. If a State wishes to provide AFDC for children of unemployed fathers, the State plan under Title IV Part A of the Social Security Act must, except as specified in paragraph (b) of this section:
"(1) Include a definition of an unemployed father which shall apply only to families determined to be needy in accordance with the provisions in § 233.20 of this chapter. Such definition must include any father who:
"(i) Is employed less than 100 hours a month; or
"(ii) Exceeds that standard for a particular month, if his work is intermittent and the excess is of a temporary nature as evidenced by the fact that he was under the 100-hour standard for the prior 2 months and is expected to be under the standard during the next month; except that, at the option of the State, such definition need not include a father whose unemployment results from participation in a labor dispute or who is unemployed by reason of conduct or circumstances which result or would result in disqualification for unemployment compensation under the State's unemployment compensation law."
2
"s 607. Dependent children of unemployed fathers; definition.
"(a) The term 'dependent child' shall, notwithstanding section 606(a) of this title, include a needy child who meets the requirements of section 606(a)(2) of this title who has been deprived of parental support or care by reason of the unemployment (as determined in accordance with standards prescribed by the Secretary) of his father, and who is living with any of the relatives specified in section 606(a)(1) of this title in a place of residence maintained by one or more of such relatives as his (or their) own home."
3
The program originally was to expire June 30, 1962. It was extended, however, first for five years, 76 Stat. 193, and then to June 30, 1968, 81 Stat. 94.
4
Before the 1968 amendments, § 407(a) referred to "unemployment (as defined by the State)." 75 Stat. 75. Under the original statute the States were also free to decide to what extent receipt of unemployment compensation would affect eligibility for AFDC-UF benefits. Section 407(b)(2)(C)(ii) was added and amended in 1968 to require participating States to deny AFDC-UF benefits "with respect to any week for which such child's father receives unemployment compensation under an unemployment compensation law of a State or of the United States." § 302, 82 Stat. 273.
In Philbrook v. Glodgett, 421 U.S., at 710 n. 6, 719, 95 S.Ct., at 1897, 1901, the Court observed that a purpose of the 1968 amendments was to eliminate variations in AFDC-UF coverage among the States. Accordingly, § 407(b)(2)(C) (ii) was held to establish a nationwide test of eligibility under which only the actual "receipt" of unemployment compensation would preclude AFDC-UF benefits. Thus the States were required to allow persons eligible for both programs to refuse unemployment compensation and receive AFDC-UF benefits instead. 421 U.S., at 713-719, 95 S.Ct., at 1898-1901.
The effect of the Court's decision in Philbrook was counteracted the following year when Congress again amended § 407(b)(2)(C)(ii) to require denial of AFDC-UF benefits where a father is qualified for unemployment compensation but refuses to apply for or accept it. Pub.L. 94-566, § 502, 90 Stat. 2688.
5
This Rule, which has since been redesignated COMAR 07.02.09.10(A)(2) (1975), provides that AFDC-UF benefits may not be paid "(t)o meet need due to being disqualified for unemployment insurance." Maryland's Unemployment Insurance Law specifies various grounds that disqualify otherwise eligible individuals from receiving benefits. These grounds include, among others, voluntarily leaving work without good cause, gross misconduct, discharge or suspension as a disciplinary measure (temporary disqualification for not less than one week and for not more than nine weeks), and certain work stoppages due to labor disputes other than lockouts. Md.Ann.Code, art. 95A, §§ 6(a), (b), (c), and (e) (1969).
6
The notice of rulemaking read:
"Dependent Children of Unemployed Fathers
"Notice is hereby given that the regulation set forth in tentative, alternative form below is proposed by the Administrator, Social and Rehabilitation Service, with the approval of the Secretary of Health, Education, and Welfare. Both alternatives would amend § 233.100(a)(1), which provides a Federal definition of unemployed father under the AFDC program in terms of hours of work.
"In applying the existing regulation, the Department policy has been to permit a State, at its option, to use a definition of unemployed father which imposes additional conditions relating to the reason for the unemployment, e. g., the State definition might exclude a father whose unemployment results from participation in a labor dispute or who is unemployed by reason of conduct or circumstances which result or would result in disqualification for unemployment compensation under the State's unemployment compensation law. In Davidson v. Francis, the U. S. Supreme Court on October 16, summarily affirmed the judgment of the district court which held, in effect, that while the Secretary has broad authority to define an unemployed father for purposes of section 407 of the Social Security Act, the existing Federal regulation provides only an hours-of-work test, and thus prohibits a State from excluding fathers who meet this test but are disqualified for unemployment compensation.
"Accordingly, the proposed alternative A below would amend the regulation to make the prior Department policy explicit, by stating the options which are permitted to the States in defining an unemployed father. Alternative B, on the other hand, would amend the regulation to make clear that the hours-of-work test is intended as the exclusive definition of unemployed father, so that States may not have definitions which impose added conditions. This would be a change in Department policy, but would be consistent with the way that the existing regulation has been interpreted by the courts."
38 Fed.Reg. 49 (1973).
"Alternative A" was eventually adopted. Id., at 18549.
7
The Chamber of Commerce of the United States, as intervenor in Francis II, also filed a petition for certiorari, No. 75-1182, arguing that federal labor policy prohibits the payment of welfare benefits to persons involved in labor disputes. Although we did not act on its petition, the Chamber filed a brief as respondent-intervenor in the present case. In light of today's decision, the petition for certiorari in No. 75-1182 is denied.
8
The Court there explained:
"Administration, when it interprets a statute so as to make it apply to particular circumstances, acts as a delegate to the legislative power. Congress might have declared that 'back pay' awards under the Labor Act should or should not be treated as wages. Congress might have delegated to the Social Security Board to determine what compensation paid by employers to employees should be treated as wages. Except as such interpretive power may be included in the agencies' administrative functions, Congress did neither. An agency may not finally decide the limits of its statutory power. That is a judicial function. Congress used a well understood word 'wages' to indicate the receipts which were to govern taxes and benefits under the Social Security Act. There may be borderline payments to employees on which courts would follow administrative determination as to whether such payments were or were not wages under the act.
"We conclude, however, that the Board's interpretation of this statute to exclude back pay goes beyond the boundaries of administrative routine and the statutory limits." 327 U.S., at 369, 66 S.Ct., at 643 (footnote omitted).
9
Legislative, or substantive, regulations are "issued by an agency pursuant to statutory authority and . . . implement the statute, as, for example, the proxy rules issued by the Securities and Exchange Commission . . .. Such rules have the force and effect of law." U.S. Dept. of Justice, Attorney General's Manual on the Administrative Procedure Act 30 n. 3 (1947). See United States v. Mersky, 361 U.S. 431, 437-438, 80 S.Ct. 459, 463, 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).
By way of contrast, a court is not required to give effect to an interpretative regulation. Varying degrees of deference are accorded to administrative interpretations, based on such factors as the timing and consistency of the agency's position, and the nature of its expertise. See General Electric Co. v. Gilbert, 429 U.S. 125, 141-145, 97 S.Ct. 401, 410-412, 50 L.Ed.2d 343 (1976); Morton v. Ruiz, 415 U.S. 199, 231-237, 94 S.Ct. 1055, 1072-1075, 39 L.Ed.2d 270 (1974); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944).
See generally K. Davis, Administrative Law Treatise § 5.03 (1958 and Supps. 1970, 1976); L. Jaffe, Judicial Control of Administrative Action 564-565 (1965).
10
The other kinds of review provided by the Administrative Procedure Act are not involved in this case. The constitutionality and procedural aspects of the regulation, 5 U.S.C. §§ 706(2)(B), (D), are not at issue at this time. Neither substantial-evidence review nor trial de novo, §§ 706(2)(E), (F), was available in this case. See Camp v. Pitts, 411 U.S. 138, 140-142, 93 S.Ct. 1241, 1243-1244, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-416, 91 S.Ct. 814, 822-823, 28 L.Ed.2d 136 (1971).
11
"Employed persons are (1) those who worked for pay any time during the week which includes the 12th day of the month or who worked unpaid for 15 hours or more in a family-operated enterprise and (2) those who were temporarily absent from their regular jobs because of illness, vacation, industrial dispute, or similar reasons. . . .
"Unemployed persons are those who did not work during the survey week, but were available for work except for temporary illness and had looked for jobs within the preceding 4 weeks. Persons who were available for work but did not work because they were on layoff or waiting to start new jobs within the next 30 days are also counted among the unemployed. . . .
". . . Persons not in the labor force are those not classified as employed or unemployed; this group includes persons retired, those engaged in their own housework, those not working while attending school, those unable to work because of long-term illness, those discouraged from seeking work because of personal or job market factors and those who are voluntarily idle. . . ." U.S. Dept. of Labor, Monthly Labor Review 91 (Apr. 1977).
12
"Unemployment insurance programs are designed to provide cash benefits to regularly employed members of the labor force who become involuntarily unemployed and who are able and willing to accept suitable jobs." Dept. of HEW, Social Security Programs in the United States 54 (1971). See also Ohio Bureau of Employment Services v. Hodory, 431 U.S., at 482 and 487 n. 15, 97 S.Ct., at 1905-1906, and 1908.
13
Among the conditions imposed by § 407(b) are requirements that the unemployed father have a substantial connection with the work force and that he actively seek employment. See Philbrook v. Glodgett, 421 U.S. 707, 710 n. 6, 95 S.Ct. 1893, 1897 n. 6, 44 L.Ed.2d 525 (1975).
14
In describing the bill on the floor of the House, a cosponsor stated that the concern was with the "involuntarily unemployed and I put the emphasis on the word 'involuntarily.' " 107 Cong.Rec. 3767 (1961) (remarks of Cong. Byrnes).
15
When President Kennedy proposed the adoption of the AFDC-UF program in 1961, the only example he gave of the sort of person that would be covered was one "who has exhausted unemployment benefits and is not receiving adequate local assistance. . . . " Message from the President on Economic Recovery and Growth, 107 Cong.Rec. 1679 (1961).
16
Although 45 CFR § 233.100(a)(1) (1976) contains a separate option for States to exclude labor-dispute participants from AFDC-UF, Maryland has incorporated its labor-dispute rule as a disqualification for unemployment compensation. The labor-dispute provision of the federal regulation, therefore, is not directly at issue in this case. We attach no significance to the approach followed by Maryland in this case.
17
The Francis I court initially held that the Secretary could have left the decision on whether strikers are unemployed up to each State, but that he had failed to do so in the regulation then in effect. 340 F.Supp., at 367-368. After the regulation was so amended, however, the same court held it invalid, 379 F.Supp., at 81-82, because the Secretary failed to establish "national standards within which the regulations of each of the states were to be channelized and confined." Id., at 82. The extent to which any significant options in coverage would be tolerated under this approach is not clear. The court, however, stopped short of repudiating its previous conclusion that § 407(a) does not require the Secretary to adopt a "national definition" of unemployment. 379 F.Supp., at 82.
*
The Court appears to believe that the statutory language supports its view that the States are still free to define the eligibility criteria for AFDC-UF benefits; but the statute provides that "unemployment" will be "determined in accordance with standards prescribed by the Secretary," not the States. (Emphasis added.) The Court concludes that the statutory language contemplates that unemployment will be "determined" by the States and that only the "standards" will be determined by the Secretary. The majority suggests that if Congress had intended for the Secretary to define unemployment, it would have used the words "unemployment (as defined by the Secretary)." The Court's paper-thin distinction between "determining" unemployment and prescribing "standards" totally escapes me. Moreover, according to the Court's logic, if Congress had intended the meaning suggested by the majority, it would have provided that unemployment would be "determined by the States in accordance with the standards prescribed by the Secretary"; instead, Congress eliminated all references to the States. The commonsense meaning of the statutory language is that "unemployment" is to be defined by the Secretary, and as we shall see, the statute is susceptible of no other interpretation when read in the context of the legislative history.
| 12
|
432 U.S. 404
97 S.Ct. 2428
53 L.Ed.2d 439
Dolph BRISCOE, Governor of Texas, et al., Petitioners,v.Griffin B. BELL, Attorney General of the United States, et al.
No. 76-60.
Argued April 20, 1977.
Decided June 20, 1977.
Syllabus
The provision of § 4(b) of the Voting Rights Act of 1965 that a determination of the Attorney General or Director of the Census that a State is covered by the Act "shall not be reviewable in any court" held absolutely to preclude judicial review of such a determination. Hence the District Court and Court of Appeals erred in holding that they had jurisdiction to review petitioners' claims that the Attorney General and Director of the Census (respondents) had erroneously applied § 4(b) in determining that Texas is covered by the 1975 amendments to the Act extending its protections to language minorities, such as Mexican-Americans. A "bailout" suit under § 4(a) to terminate coverage is Texas' sole remedy. Pp. 409-415.
(a) Such construction of § 4(b) is supported by its language and legislative history and by the Act's structure and its purpose to eradicate voting discrimination with all possible speed, as well as by this Court's interpretations of the Act. See South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769; Gaston County v. United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309; Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 2411, 53 L.Ed.2d 506. Pp. 410-414.
(b) While the finality of determinations under § 4(b) may be "an uncommon exercise of congressional power," South Carolina v. Katzenbach, supra, 383 U.S., at 335, 86 S.Ct., at 822, nevertheless in attacking the pervasive evils and tenacious defenders of voting discrimination, Congress acted within its "power to enforce" the Fourteenth and Fifteenth Amendments "by appropriate legislation." Pp. 414-415.
175 U.S.App.D.C. 297, 535 F.2d 1259, vacated and remanded.
David M. Kendall, Jr., Austin, Tex., for petitioners.
Howard E. Shapiro, Washington, D. C., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
At issue in this case is the construction of § 4 of the Voting Rights Act of 1965, 42 U.S.C. § 1973b (1970 ed. and Supp. V). "The Voting Rights Act 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). While the Act has had a dramatic effect in increasing the participation of black citizens in the electoral process, both as voters and elected officials, Congress has not viewed it as an unqualified success.1 Most recently, as part of the 1975 amendments to the Voting Rights Act, 89 Stat. 400, Congress extended the Act's strong protections to cover language minorities that is, citizens living in environments where the dominant language is not English. Congress concluded after extensive hearings that there was "overwhelming evidence" showing "the ingenuity and prevalence of discriminatory practices that have been used to dilute the voting strength and otherwise affect the voting rights of language minorities."2 Concern was particularly expressed over the plight of Mexican-American citizens in Texas, a State that had not been covered by the 1965 Act.3 This case arises out of Texas' efforts to prevent application of the 1975 amendments to it.
2
* Petitioners, the Governor and Secretary of State of Texas, filed suit in the District Court for the District of Columbia against the Attorney General of the United States and the Director of the Census.4 These officials are responsible for determining whether the preconditions for application of the Act to particular jurisdictions are met. See § 4(b) of the Act, 42 U.S.C. § 1973b(b) (1970 ed., Supp. V).5 Petitioners sought interlocutory injunctive relief to restrain official publication of respondents' determinations that Texas was covered by the 1975 amendments, and a "declaratory judgment" determining "how and under what circumstances the determinations . . . should be made."6 Pet. for Cert. 6.
3
Respondents opposed the motion for a preliminary injunction, and moved to dismiss the suit for failure to state a claim upon which relief could be granted and for lack of jurisdiction to review determinations made under § 4(b). The jurisdictional argument was based on the final paragraph of § 4(b), which provides in pertinent part: "A determination or certification of the Attorney General or of the Director of the Census under this section . . . shall not be reviewable in any court . . . ." The District Court ruled, however, that this apparent preclusion of judicial review was not absolute. It found that there was jurisdiction to consider the "pure legal question" whether the Executive officials had correctly interpreted an Act of Congress. Reaching the merits of petitioners' claims, the District Court rejected them all and granted summary judgment for respondents.7
4
On appeal to the Court of Appeals for the District of Columbia Circuit, respondents discussed but did not "take issue with" the jurisdictional ruling of the District Court. The Court of Appeals nevertheless considered the issue carefully, concluding:
5
"It is . . . apparent that even where the intent of Congress was to preclude judicial review, a limited jurisdiction exists in the court to review actions which on their face are plainly in excess of statutory authority. . . . The district court in the instant case was careful to note that the actual computations made by the Director of the Census were not within its jurisdiction to review, and that its scope of review was limited to determining whether the Director acted 'consistent with the apparent meaning of the statute.' Narrowly defined in this manner, the jurisdiction of the trial court to consider the Director's determinations is supported by precedent . . . ." Briscoe v. Levi, 175 U.S.App.D.C. 297, 303, 535 F.2d 1259, 1265 (1976).
6
Turning to the merits of petitioners' procedural and statutory construction arguments, the Court of Appeals thoroughly analyzed the statute and the legislative history. It found that respondents had correctly interpreted the Act and affirmed the judgment of the District Court.8
7
We granted certiorari sub nom. Briscoe v. Levi, 429 U.S. 997, 97 S.Ct. 522, 50 L.Ed.2d 607 (1976). Although respondents do not assert before us the jurisdictional objection raised in the District Court, we find that the courts below incorrectly concluded that they had power to review respondents' determinations that Texas was covered by the Act. See Philbrook v. Glodgett, 421 U.S. 707, 721, 95 S.Ct. 1893, 1902, 44 L.Ed.2d 525 (1975), and cases there cited. We therefore order dismissal of the complaint without reaching the merits of petitioners' claims.
II
8
(1) Section 4(b) of the Voting Rights Act could hardly prohibit judicial review in more explicit terms. It states that a "determination or certification of the Attorney General or of the Director of the Census under this section . . . shall not be reviewable in any court and shall be effective upon publication in the Federal Register." The language is absolute on its face and would appear to admit of no exceptions. The purposes and legislative history of the Act strongly support this straightforward interpretation.
9
The Voting Rights Act was conceived by Congress as a stern and powerful remedy to combat "an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution." South Carolina v. Katzenbach, 383 U.S., at 309, 86 S.Ct., at 808. The stringent remedial provisions of the Act9 were based on Congress' finding that "case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered . . . ." Id., at 328, 86 S.Ct., at 818. The intention of the drafters of the Act was "to shift the advantage of time and inertia from the perpetrators of the evil to its victims." Ibid. Reading § 4(b) as completely precluding judicial review thus implements Congress' intention to eradicate the blight of voting discrimination with all possible speed.
10
The drafters' specific comments on § 4(b) further support this view. The House Report stated that the coverage formula "requires certain factual determinations determinations that are final when made and not reviewable in court." H.R.Rep. No. 439, 89th Cong., 1st Sess., 25 (1965); U.S.Code Cong. & Admin.News 1965, pp. 2437, 2456. The minority report criticized the Act precisely because it went into effect "without evidence, without a judicial proceeding or a hearing of any kind." Id., at 45; U.S.Code Cong. & Admin.News 1965, p. 2473; see also id., at 43. The Report of the Senate Judiciary Committee sponsors of the Act also described § 4 as requiring "factual determinations . . . that are not reviewable in court." S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, p. 22 (1965).
11
Congress was well aware, however, that the simple formula of § 4(b) might bring within its sweep governmental units not guilty of any unlawful discriminatory voting practices. It afforded such jurisdictions immediately available protection in the form of an action to terminate coverage under § 4(a) of the Act. While this so-called "bailout" suit is subject to narrow procedural and substantive limitations,10 § 4(a) does instruct the Attorney General that if he "determines that he has no reason to believe that any . . . test or device" has been used for a prohibited purpose during the relevant time period, "he shall consent to the entry of . . . judgment" exempting the jurisdiction. See H.R.Rep. No. 439, supra, 14-15, 19.11
12
Although this Court has never considered at length the scope of the § 4(b) preclusion clause, we have indicated that the words of the statute mean what they say. In South Carolina v. Katzenbach, supra, the Court upheld the constitutionality of § 4(b), which the Court stated "bar(red) direct judicial review of the findings by the Attorney General and the Director of the Census which trigger application of the coverage formula." 383 U.S., at 332, 86 S.Ct., at 821. The Court recognized that § 4(b) might be "improperly applied," but found that a bailout suit was the only available remedy. 383 U.S., at 333, 86 S.Ct., at 821. The Court noted that "(t)his procedure serves as a partial substitute for direct judicial review." Ibid.
13
Similarly, in Gaston County v. United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (1969), we stated that "(t)he coverage formula chosen by Congress was designed to be speedy, objective, and incontrovertible." Id., at 291-292, 89 S.Ct., at 1723. A footnote added: "Section 4(b) of the Act makes the determinations by the Attorney General and the Director of the Census unreviewable in any court." Id., at 292 n. 6, 89 S.Ct., at 1723. See also id., at 287, 89 S.Ct., at 1721. The significant part played by the discretionary authority of the Attorney General in administering the Act is also underlined by Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 2411, 53 L.Ed.2d 506. There the Court finds no authority to review the Attorney General's failure to object, under § 5 of the Act, to a change in the voting laws of a covered jurisdiction. Although § 5 contains no express preclusion of review, the Court concludes from its structure and purposes that Congress intended no prolonged suspension of the operation of validly enacted state laws to allow judicial review. Since § 4(b) expressly provides that the administrative determinations "shall not be reviewable in any court," and conclusions similar to those in Morris may be drawn from the statutory structure, the case for preclusion is, if anything, stronger here than in Morris.
14
We conclude then, that the plain meaning and history of § 4(b), the purpose and structure of the Act, as well as this Court's interpretation of it, indicate that judicial review of § 4(b) determinations by the Attorney General and the Director of the Census is absolutely barred. There is in this case " 'persuasive reason to believe that such was the purpose of Congress.' Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)." Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975). "(T)he heavy burden of overcoming the strong presumption that Congress did not mean to prohibit all judicial review" of this administrative decision has been met with the requisite " 'clear and convincing evidence.' " Ibid.12
15
Under these circumstances, the Court of Appeals erred in relying on cases that inferred jurisdiction to review administrative actions where there was no clear showing of preclusion.13 Since different congressional enactments have distinct purposes and use diverse means to achieve them, each case raising an administrative reviewability question must be analyzed on the basis of the specific statutory provisions involved. If the intent of Congress is unmistakable and we have no doubt that it is here the only remaining issue is whether prohibiting judicial review is constitutionally permissible.
16
(2) On that score, the finality of determinations under § 4(b), like the preclearance requirement of § 5, may well be "an uncommon exercise of congressional power," South Carolina v. Katzenbach, 383 U.S., at 334, 86 S.Ct., at 822; see also Morris v. Gressette, 432 U.S., at 501, 97 S.Ct., at 2419. But there can be no question that in attacking the pervasive evils and tenacious defenders of voting discrimination. Congress acted within its "power to enforce" the Fourteenth and Fifteenth Amendments "by appropriate legislation." South Carolina v. Katzenbach, supra.
17
For the foregoing reasons, we hold that the courts below erred in finding that they had jurisdiction to review petitioners' claims of erroneous application of § 4(b). The only procedure available to Texas to seek termination of Voting Rights Act coverage is a bailout suit under the strict limitations of § 4(a). Accordingly, the decision of the Court of Appeals is vacated, and the case is remanded with instructions to direct the District Court to dismiss the complaint.
18
It is so ordered.
19
Mr. Justice POWELL concurs in the judgment of the Court.
1
See, e. g., S.Rep. No. 94-295, pp. 13-15 (1975) (hereafter Senate Report); H.R.Rep. No. 94-196, pp. 6-8 (1975) (hereafter House Report); U.S.Code Cong. & Admin.News 1975, p. 774.
2
Senate Report 30, 35; House Report 22, 26-27; U.S.Code Cong. & Admin.News 1975, p. 801. See § 4(f)(1) of the Act, 42 U.S.C. § 1973b(f)(1) (1970 ed., Supp. V):
"The Congress finds that voting discrimination against citizens of language minorities is pervasive and national in scope. Such minority citizens are from environments in which the dominant language is other than English. In addition they have been denied equal educational opportunities by State and local governments, resulting in severe disabilities and continuing illiteracy in the English language. The Congress further finds that, where State and local officials conduct elections only in English, language minority citizens are excluded from participating in the electoral process. In many areas of the country, this exclusion is aggravated by acts of physical, economic, and political intimidation. The Congress declares that, in order to enforce the guarantees of the fourteenth and fifteenth amendments to the United States Constitution, it is necessary to eliminate such discrimination by prohibiting English-only elections, and by prescribing other remedial devices."
"The term 'language minorities' or 'language minority group' means persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." § 14(c)(3) of the Act, 42 U.S.C. § 1973l (c)(3) (1970 ed., Supp. V). See Senate Report 24; House Report 16. The language minority protections apply only to jurisdictions where "the Director of the Census determines that more than five per centum of the citizens of voting age . . . are members of a single language minority." § 4(f)(3) of the Act, 42 U.S.C. § 1973b(f)(3) (1970 ed., Supp. V).
3
See Senate Report 25-28; House Report 17-20.
4
Also named as defendants were the Assistant Attorney General, Civil Rights Division, the Secretary of Commerce, and the Public Printer of the United States.
5
As pertinent to this case, § 4(b) substantively provides:
"(T)he provisions of subsection (a) of this section shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1972, any test or device, and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the citizens of voting age were registered on November 1, 1972, or that less than 50 per centum of such persons voted in the Presidential election of November 1972."
6
Petitioners argued that the Attorney General, in determining whether Texas had used a "test or device" of English-only elections, see § 4(f)(3), 42 U.S.C. § 1973b(f)(3) (1970 ed., Supp. V) was obliged to consider whether it had done so "for the purpose or with the effect of denying or abridging the right to vote" as that is defined in § 4(d). They argued that the Director of the Census should have interpreted "such persons," in the last clause of § 4(b) quoted in n. 5, supra, to refer only to persons registered to vote rather than to all citizens. They also argued that even if their statutory interpretation claims were rejected, the Attorney General and the Director had violated their duties under the statute by failing to afford Texas a hearing before making the coverage determination and by incorrectly calculating the number of citizens and persons of Spanish heritage in Texas. Petitioners disclaimed any constitutional challenge to the Act.
7
After the District Court denied relief, the § 4(b) coverage determination was officially published. 40 Fed.Reg. 43746 (1975).
The Attorney General found that Texas had maintained the "test or device" of English-only elections. The Director of the Census calculated from this agency's statistics that more than 5% of the voting age citizens in Texas were of Spanish heritage, and that 46.2% of voting age citizens cast ballots in the 1972 Presidential election:
Estimated
number
Voting age population
on November 1,1972......................... 7,655,000
Less aliens of voting age..................... 140,657
Citizens of voting age...................... 7,514,343
Votes cast.................................. 3,472,714
8
The Court of Appeals ruled that the definitions in § 4(d) apply only in suits brought to terminate coverage under § 4(a), and not to the Attorney General's determination under § 4(b). It held that while the language of the statute was unclear, the legislative history and administrative and judicial interpretation of § 4(b) clearly indicated that "such persons" referred to "citizens of voting age." The court also held that the Director properly relied on census figures in calculating the number of citizens of voting age, rejecting petitioners' "amalgams of estimates and hypotheses," 175 U.S.App.D.C., at 307, 535 F.2d, at 1269, allegedly showing large numbers of illegal aliens in Texas. It found that while Texas was not entitled to any pre-determination hearing on coverage, it had been afforded ample opportunity to present information before the decision was made.
9
The Act suspends the operation of all "tests or devices," including English-only elections, in covered jurisdictions. § 4. Before such jurisdictions may implement any change in voting laws or procedures, they must secure the approval of the Attorney General or a three-judge court in the District of Columbia that the change will not violate the Act. § 5. In addition, federal registrars and observers may be appointed to effectuate compliance with the Act. §§ 6-9.
10
The action may be brought only before a three-judge District Court in the District of Columbia, with direct appeal to this Court. Under the 1975 amendments, Texas would be required to show in such a bailout suit "that no . . . test or device has been used during the ten years preceding the filing of an action . . . for the purpose with the effect of denying or abridging the right to vote on account of race or color, or in contravention of the (language minority) guarantees . . . ." § 4(a). Another proviso of § 4(a), and § 4(b), further define the applicable standards.
11
It is notable that a number of jurisdictions brought within the Act by the coverage formula have successfully exempted themselves in bailout suits. See Senate Report, 12 n. 4, 13 n. 5; House Report, 5 n. 4, 6 n. 5. The burden of proving nondiscrimination is thus not an impossible one by any means, and this ameliorative route has been available to Texas at all times.
12
Petitioners argued in support of reviewability in the District Court that because the preclusion paragraph of § 4(b) contains the statement that coverage determinations "shall be effective upon publication in the Federal Register," review is foreclosed only after publication, but is available before. This case was commenced prior to publication of the coverage determination. Petitioners' argument tortures the plain meaning of the paragraph, which is made up of two independent clauses. The first precludes review without limitation as to time; the second establishes the precise date at which a coverage determination becomes effective, thereby requiring, for example, preclearance of any laws affecting voting rights after that date.
13
The Court of Appeals primarily reasoned by analogy with Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). The issue there was whether a district court had jurisdiction to review a claim that the National Labor Relations Board had acted "in excess of its delegated powers and contrary to a specific (statutory) prohibition," id., at 188, 79 S.Ct., at 184, in certifying a collective-bargaining unit. While § 9(d) of the National Labor Relations Act, 29 U.S.C. § 159(d), arguably divested the district courts of jurisdiction, it contained no express language to that effect. It merely specified the manner in which the record of a certification proceeding would be transmitted to a court of appeals for ultimate review in the event an unfair labor practice case followed an employer's refusal to bargain with a certified union. The action in Leedom was brought by a group of employees affected by the NLRB's admitted violation of the Act in certifying their bargaining unit. The Court noted that unless the District Court had jurisdiction, the employees might never secure review of the Board's error. Absent express preclusion, the Court was unwilling to find that Congress intended to allow " 'obliteration of a right which Congress' has given
(the affected employees), for there is no other means, within their control . . . to protect and enforce that right." 358 U.S., at 190, 79 S.Ct., at 185.
By contrast in this case, § 4(b) on its face forecloses judicial review. No inference from the structure of the statute nor from its legislative history, cf. 358 U.S., at 191-201, 79 S.Ct., at 185, 190. (BRENNAN, J., dissenting), is necessary to make its meaning plain. And as we have noted, preclusion of review of § 4(b) determinations does not wholly pretermit judicial action by the affected jurisdiction to terminate coverage.
The Court of Appeals also erred in relying on Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). At issue there was the authority of a court of appeals to grant mandamus relief against the improper remand to a state court of an action previously removed to federal court. A remand order is generally "not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d). We held, however, that review is not precluded if the order is based " 'on grounds wholly different from those . . . which (the statute authorizing remand, 28 U.S.C.) § 1447(c) permits.' " Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 724, 97 S.Ct. 1439, 1440, 52 L.Ed.2d 1 (1977). Where the order is based on one of the enumerated grounds, review is unavailable no matter how plain the legal error in ordering the remand. Id., at 723, 97 S.Ct., at 1440.
While we express no opinion on the question whether § 4(b) precludes review of coverage determinations based on criteria not specified in the statute, we note that in the present case, there is no question that the Attorney General and the Director of the Census relied solely upon the statutory grounds in finding Texas covered by the Act.
| 12
|
432 U.S. 355
97 S.Ct. 2447
53 L.Ed.2d 402
OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, Petitioner,v.EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
No. 76-99.
Argued April 20, 1977.
Decided June 20, 1977.
Syllabus
About three years after an employee of petitioner company had first complained to the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964 that petitioner had discriminated against her because of her sex, and five months after conciliation efforts by the EEOC had failed, the EEOC brought this enforcement action in the District Court for the Central District of California. The court granted petitioner's motion for summary judgment on the ground that the enforcement action was time barred by § 706(f) (1) of the Act, since the action had not been brought within 180 days of either the formal filing of the charge with the EEOC or the effective date of the Equal Employment Opportunity Act of 1972. Alternatively, the court held that the action was subject to and barred by the California one-year statute of limitations. The Court of Appeals reversed. Section 706(f)(1) provides in relevant part: "If a charge filed with the Commission . . . is dismissed by the Commission, or within one hundred and eighty days from the filing of such charge or the expiration of any period of reference (from a state agency), whichever is later, the Commission has not filed a civil action under this section . . ., or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . ., shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice." Held:
1. Section 706(f)(1) imposes no limitation upon the EEOC's power to file suit in federal court. The provision's language and legislative history show that it was intended to enable an aggrieved person unwilling to await the conclusion of extended EEOC proceedings to institute a private lawsuit 180 days after a charge has been filed. Pp. 358-366.
2. EEOC enforcement actions are not subject to state statutes of limitations. Pp. 366-372.
(a) Though a congressional intent to apply a local limitations period has been inferred in instances where a federal statute creating a cause of action fails to specify such a period, state limitations periods will not be borrowed if their application would not comport with the federal statute's underlying policies. P. 367.
(b) Under the procedural structure created by amendments to the Act in 1972, when EEOC was created and given enforcement powers in lieu of the previous voluntary-compliance scheme, EEOC does not function as a vehicle for conducting litigation on behalf of private parties but is charged with investigating employment discrimination claims and settling them by informal conciliation if possible, and it is required to refrain from suing until it has discharged its administrative responsibilities. Application of a State's limitation period would not thus further the federal policy, and the one-year California bar applied by the District Court could under some circumstances conflict with that policy. Pp. 367-369.
(c) Congress was well aware of the enormous backlog of EEOC cases but the concern expressed for the fair operation of the Act focused on the filing of the initial charge with the EEOC rather than on later limitations on EEOC's power to sue. Pp. 369-372.
3. The courts do not lack discretionary remedial power if, despite procedural protections accorded a Title VII defendant under the Act, EEOC delay in bringing suit, after conciliation efforts have failed, significantly handicaps the defense. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 424-425, 95 S.Ct. 2362, 2374-2375, 45 L.Ed.2d 280. P. 372-373.
535 F.2d 533, affirmed.
Dennis H. Vaughn, Los Angeles, Cal., for petitioner.
Thomas S. Martin, Washington, D. C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
In 1972 Congress amended Title VII of the Civil Rights Act of 1964 so as to empower the Equal Employment Opportunity Commission to bring suit in a federal district court against a private employer alleged to have violated the Act. The sole question presented by this case is what time limitation, if any, is imposed on the EEOC's power to bring such a suit.
2
* On December 27, 1970, an employee of the petitioner Occidental Life Insurance Co. filed a charge with the EEOC claiming that the company had discriminated against her because of her sex.1 After a fruitless referral to the appropriate state agency, the charge was formally filed with the EEOC on March 9, 1971,2 and subsequently served on the company. After investigation, the EEOC served proposed findings of fact on the company on February 25, 1972, to which the company in due course filed exceptions. Conciliation discussions between the EEOC and the company began in the summer of 1972. These discussions continued sporadically into 1973, but on September 13 of that year the EEOC determined that conciliation efforts had failed and so notified the company and the original complainant. The latter requested that the case be referred to the General Counsel of the EEOC to bring an enforcement action. On February 22, 1974, approximately three years and two months after the complainant first communicated with the EEOC and five months after conciliation efforts had failed, the EEOC brought this enforcement action in a Federal District Court.
3
The District Court granted the company's motion for summary judgment on the ground that the law requires that an enforcement action be brought within 180 days of the filing of a charge with the EEOC.3 Alternatively, the court held that the action was subject to the most appropriate state limitations statute and was therefore barred by the one-year limitation provision of Cal.Code Civ.Proc.Ann. § 340(3) (West Supp. 1977).4 The Court of Appeals for the Ninth Circuit reversed, holding that the federal law does not impose a 180-day limitation on the EEOC's authority to sue and that the action is not governed by any state statute of limitations. 535 F.2d 533.
4
We granted certiorari, 429 U.S. 1022, 97 S.Ct. 638, 50 L.Ed.2d 623, to consider an important and recurring question regarding Title VII.
II
5
As enacted in 1964, Title VII limited the EEOC's function to investigation of employment discrimination charges and informal methods of conciliation and persuasion.5 The failure of conciliation efforts terminated the involvement of the EEOC. Enforcement could then be achieved, if at all, only if the charging party, or other person aggrieved by the allegedly unlawful practice, initiated a private suit within 30 days after EEOC notification that conciliation had not been successful.6
6
In the Equal Employment Opportunity Act of 19727 Congress established an integrated, multistep enforcement procedure culminating in the EEOC's authority to bring a civil action in a federal court. That procedure begins when a charge is filed with the EEOC alleging that an employer has engaged in an unlawful employment practice. A charge must be filed within 180 days after the occurrence of the allegedly unlawful practice, and the EEOC is directed to serve notice of the charge on the employer within 10 days of filing.8 The EEOC is then required to investigate the charge and determine whether there is reasonable cause to believe that it is true. This determination is to be made "as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge."9 If the EEOC finds that there is reasonable cause it "shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion."10 When "the Commission (is) unable to secure . . . a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge."11
7
The 1972 Act expressly imposes only one temporal restriction on the EEOC's authority to embark upon the final stage of enforcement the bringing of a civil suit in a federal district court: Under § 706(f)(1), the EEOC may not invoke the judicial power to compel compliance with Title VII until at least 30 days after a charge has been filed. But neither § 706(f) nor any other section of the Act explicitly requires the EEOC to conclude its conciliation efforts and bring an enforcement suit within any maximum period of time.
8
The language of the Act upon which the District Court relied in finding a limitation that bars the bringing of a lawsuit by the EEOC more than 180 days after a timely charge has been filed with it is found in § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) (1970 ed., Supp. V), which provides in relevant part:
9
"If a charge filed with the Commission . . . is dismissed by the Commission, or within one hundred and eighty days from the filing of such charge or the expiration of any period of reference (from a state agency), whichever is later, the Commission has not filed a civil action under this section . . ., or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice."
10
On its face, § 706(f)(1) provides little support for the argument that the 180-day provision is such a statute of limitations. Rather than limiting action by the EEOC, the provision seems clearly addressed to an alternative enforcement procedure: If a complainant is dissatisfied with the progress the EEOC is making on his or her charge of employment discrimination, he or she may elect to circumvent the EEOC procedures and seek relief through a private enforcement action in a district court. The 180-day limitation provides only that this private right of action does not arise until 180 days after a charge has been filed. Nothing in § 706(f)(1) indicates that EEOC enforcement powers cease if the complainant decides to leave the case in the hands of the EEOC rather than to pursue a private action.
11
In short, the literal language of § 706(f)(1) simply cannot support a determination that it imposes a 180-day time limitation on EEOC enforcement suits. On the contrary, a natural reading of § 706(f)(1) can lead only to the conclusion that it simply provides that a complainant whose charge is not dismissed or promptly settled or litigated by the EEOC may himself bring a lawsuit, but that he must wait 180 days before doing so. After waiting for that period, the complainant may either file a private action within 90 days after EEOC notification or continue to leave the ultimate resolution of his charge to the efforts of the EEOC.
12
Only if the legislative history of § 706(f)(1) provided firm evidence that the subsection cannot mean what is so clearly seems to say would there be any justification for construing it in any other way. But no such evidence is to be found.
13
The dominant Title VII battle in the 92d Congress was over what kind of additional enforcement powers should be granted to the EEOC. Proponents of increased EEOC power constituted a substantial majority in both Houses of Congress, but they were divided between those Members who favored giving the EEOC power to issue cease-and-desist orders and those who advocated authorizing it to bring suits in the federal district courts.
14
The supporters of cease-and-desist authority won the first victory when Committees in both Houses favorably reported bills providing for that enforcement technique. The bill reported by the House Committee contained a section entitled "Civil Actions by Persons Aggrieved," embodying the provisions that eventually became that part of § 706(f)(1) at issue in the present case.12
15
The Committee Report clearly explained that the purpose of this provision was to afford an aggrieved person the option of withdrawing his case from the EEOC if he was dissatisfied with the rate at which his charge was being processed:
16
"In the case of the Commission, the burgeoning workload, accompanied by insufficient funds and a shortage of staff, has, in many instances, forced a party to wait 2 to 3 years before final conciliation procedures can be instituted. This situation leads the committee to believe that the private right of action, both under the present Act and in the bill, provides the aggrieved party a means by which he may be able to escape from the administrative quagmire which occasionally surrounds a case caught in an overloaded administrative process."13
17
Opponents of cease-and-desist authority carried their cause to the floor of the House, where Congressmen Erlenborn and Mazzoli introduced a substitute bill, which authorized the EEOC when conciliation failed to file federal-court actions rather than conduct its own hearings and issue cease-and-desist orders. The Erlenborn-Mazzoli substitute contained a private action provision substantially the same as that of the Committee bill.14 There was no suggestion in the House debates that that section in the substitute bill was intended to be a statute of limitations on EEOC enforcement action, or that the purpose of the provision differed in any way from that expressed in the Committee Report. The Erlenborn-Mazzoli substitute was adopted by the House.
18
Senate action on amendments to Title VII was essentially parallel to that of the House, beginning with the introduction of a bill giving the EEOC cease-and-desist power, and ending with the substitution of a bill authorizing it instead to file suits in the federal courts. As in the House, both the original and substitute Senate bills authorized complainants dissatisfied with the pace of EEOC proceedings to bring individual lawsuits after 180 days.15 And, as in the House, the Senate Committee explained that such a provision was necessary because the heavy caseload of the EEOC could result in delays unacceptable to aggrieved persons:
19
"As it indicated in testimony, (the EEOC's) caseload has increased at a rate which surpasses its own projections. The result has been increasing backlogs in making determinations, and the possibility of occasional hasty decisions, made under the press of time, which have unfairly prejudiced complaints. Accordingly, where the Commission is not able to pursue a complaint with satisfactory speed, or enters into an agreement which is not acceptable to the aggrieved party, the bill provides that the individual shall have an opportunity to seek his own remedy, even though he may have originally submitted his charge to the Commission."16
20
The Senate Committee further noted that the "primary concern should be to protect the aggrieved person's option to seek a prompt remedy," and that the purpose of the 180-day provision was to preserve "the private right of action by an aggrieved person."17
21
Senator Dominick led the opposition to the Committee bill on the floor of the Senate. His substitute bill did not give the EEOC power to issue cease-and-desist orders but authorized it instead to bring enforcement suits in federal courts. The substitute bill also contained a provision authorizing private lawsuits almost identical to that contained in the Committee bill. There ensued a month-long Senate debate, at the conclusion of which the substitute bill was adopted by the Senate. During the course of that debate there were only a few isolated and ambiguous references to the provision in the substitute bill authorizing federal suits by complainants dissatisfied with EEOC delay.18 But a sec tion-by-section analysis of the substitute bill made available before the final vote in the Senate clearly explained the purpose of the 180-day provision:
22
"In providing this provision, it is intended that . . . the person aggrieved should (not) have to endure lengthy delays if the agency does not act with due diligence and speed. Accordingly, the provisions . . . would allow the person aggrieved to elect to pursue his or her own remedy in the courts where agency action does not prove satisfactory."19
23
After the final Senate vote the House and Senate bills were sent to a Conference Committee. An analysis presented to the Senate with the Conference Report provides the final and conclusive confirmation of the meaning of § 706(f)(1):
24
"The retention of the private right of action, as amended, . . . is designed to make sure that the person aggrieved does not have to endure lengthy delays if the Commission . . . does not act with due diligence and speed. Accordingly, the provisions . . . allow the person aggrieved to elect to pursue his or her own remedy under this title in the courts where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution.
25
"It is hoped that recourse to the private lawsuit will be the exception and not the rule, and that the vast majority of complaints will be handled through the offices of the EEOC. . . . However, as the individual's rights to redress are paramount under the provisions of Title VII it is necessary that all avenues be left open for quick and effective relief."20
26
(1) The legislative history of § 706(f)(1) thus demonstrates that the provision was intended to mean exactly what it seems to say: An aggrieved person unwilling to await the conclusion of extended EEOC proceedings may institute a private lawsuit 180 days after a charge has been filed. The subsection imposes no limitation upon the power of the EEOC to file suit in a federal court.21
III
27
(2) The company argues that if the Act contains no limitation on the time during which an EEOC enforcement suit may be brought, then the most analogous state statute of limitations should be applied.22 Relying on a long line of cases in this Court holding state limitations periods applicable to actions brought under federal statutes, the company contends that California law barred the EEOC from bringing this lawsuit.
28
When Congress has created a cause of action and has not specified the period of time within which it may be asserted, the Court has frequently inferred that Congress intended that a local time limitation should apply. E. g., Runyon v. McCrary, 427 U.S. 160, 179-182, 96 S.Ct. 2586, 2598-2600, 49 L.Ed.2d 415 (Civil Rights Act of 1866); Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (§ 301 of the Labor Management Relations Act); O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 960 (Civil Rights Act of 1871); Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (Sherman Antitrust Act); Campbell v. Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280 (Patent Act). This "implied absorption of State statutes of limitation within the interstices of . . . federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination." Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743.
29
(3) But the Court has not mechanically applied a state statute of limitations simply because a limitations periods is absent from the federal statute. State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies. "Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide." Johnson v. Railway Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295. State limitations periods will not be borrowed if their application would be inconsistent with the underlying policies of the federal statute. Ibid.; Auto Workers v. Hoosier Cardinal Corp., supra, 383 U.S. at 701, 86 S.Ct., at 1110-1111; Board of County Commissioners v. United States, 308 U.S. 343, 352, 60 S.Ct. 285, 289, 84 L.Ed. 313. With these considerations in mind, we turn to the company's argument in this case.
30
(4) When Congress first enacted Title VII in 1964 it selected "(c)ooperation and voluntary compliance . . . as the preferred means for achieving" the goal of equality of employment opportunities. Alexander v. Gardner Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147. To this end, Congress created the EEOC and established an administrative procedure whereby the EEOC "would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit." Ibid. Although the 1972 amendments provided the EEOC with the additional enforcement power of instituting civil actions in federal courts, Congress preserved the EEOC's administrative functions in § 706 of the amended Act. Thus, under the procedural structure created by the 1972 amendments, the EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties; it is a federal administrative agency charged with the responsibility of investigating claims of employment discrimination and settling disputes, if possible, in an informal, noncoercive fashion. Unlike the typical litigant against whom a statute of limitations might appropriately run, the EEOC is required by law to refrain from commencing a civil action until it has discharged its administrative duties.
31
In view of the federal policy requiring employment discrimination claims to be investigated by the EEOC and, whenever possible, administratively resolved before suit is brought in a federal court, it is hardly appropriate to rely on the "State's wisdom in setting a limit . . . on the prosecution . . .." Johnson v. Railway Express Agency, supra, 421 U.S., at 464, 95 S.Ct., at 1722. For the "State's wisdom" in establishing a general limitation period could not have taken into account the decision of Congress to delay judicial action while the EEOC performs its administrative responsibilities. See Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348, 64 S.Ct. 582, 586, 88 L.Ed. 788; Cope v. Anderson, 331 U.S. 461, 464, 67 ,S.Ct. 1340, 1341-1342, 91 L.Ed. 1602; Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 474, 85 L.Ed. 605. Indeed, the one-year statute of limitations applied by the District Court in this case could under some circumstances directly conflict with the timetable for administrative action expressly established in the 1972 Act.23
32
But even in cases involving no inevitable and direct conflict with the express time periods provided in the Act, absorption of state limitations would be inconsistent with the congressional intent underlying the enactment of the 1972 amendments. Throughout the congressional debates many Members of both Houses demonstrated an acute awareness of the enormous backlog of cases before the EEOC24 and the consequence delays of 18 to 24 months encountered by aggrieved persons awaiting administrative action on their complaints.25 Nevertheless, Congress substantially increased the workload of the EEOC by extending the coverage of Title VII to state employers, private employers with as few as 15 employees, and nonreligious educational institutions;26 by transferring the authority to bring pattern-or-practice suits from the Attorney General to the Commission;27 and by authorizing the Commission to bring civil actions in the federal courts.28 It would hardly be reasonable to suppose that a Congress aware of the severe time problems already facing the EEOC would grant that agency substantial additional enforcement responsibilities and at the same time consign its federal lawsuits to the vagaries of diverse state limitations statutes, some as short as one year.
33
(5) Congress did express concern for the need of time limitations in the fair operation of the Act, but that concern was directed entirely to the initial filing of a charge with the EEOC and prompt notification thereafter to the alleged violator. The bills passed in both the House and the Senate contained short time periods within which charges were to be filed with the EEOC and notice given to the employer.29 And the debates and reports in both Houses made evident that the statute of limitations problem was perceived in terms of these provisions, rather than in terms of a later limitation on the EEOC's power to sue.30 That perception was reflected in the final version of the 1972 Act, which requires that a charge must be filed with the EEOC within 180 days of the alleged violation of Title VII, and that the alleged violator must be notified "of the charge (including the date, place and circumstances of the alleged unlawful employment practice) . . . within ten days" thereafter.31
34
The fact that the only statute of limitations discussions in Congress were directed to the period preceding the filing of an initial charge is wholly consistent with the Act's overall enforcement structure a sequential series of steps beginning with the filing of a charge with the EEOC. Within this procedural framework, the benchmark, for purposes of a statute of limitations, is not the last phase of the multistage scheme, but the commencement of the proceeding before the administrative body.
IV
35
(6) The absence of inflexible time limitations on the bringing of lawsuits will not, as the company asserts, deprive defendants in Title VII civil actions of fundamental fairness or subject them to the surprise and prejudice that can result from the prosecution of stale claims. Unlike the litigant in a private action who may first learn of the cause against him upon service of the complaint, the Title VII defendant is alerted to the possibility of an enforcement suit within 10 days after a charge has been filed. This prompt notice serves, as Congress intended, to give him an opportunity to gather and preserve evidence in anticipation of a court action.
36
Moreover, during the pendency of EEOC administrative proceedings, a potential defendant is kept informed of the progress of the action. Regulations promulgated by the EEOC require that the charged party be promptly notified when a determination of reasonable cause has been made,32 29 CFR § 1601.19b(b) (1976), and when the EEOC has terminated its efforts to conciliate a dispute, §§ 1601.23, 1601.25.
37
It is, of course, possible that despite these procedural protections a defendant in a Title VII enforcement action might still be significantly handicapped in making his defense because of an inordinate EEOC delay in filing the action after exhausting its conciliation efforts. If such cases arise the federal courts do not lack the power to provide relief. This Court has said that when a Title VII defendant is in fact prejudiced by a private plaintiff's unexcused conduct of a particular case, the trial court may restrict or even deny backpay relief. Albemarle Paper Co. v. Moody, 422 U.S. 405, 424-425, 95 S.Ct. 2362, 2374-2375, 45 L.Ed.2d 280. The same discretionary power "to locate 'a just result' in light of the circumstances peculiar to the case," ibid., can also be exercised when the EEOC is the plaintiff.
38
The judgment of the Court of Appeals is affirmed.
39
It is so ordered.
40
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting in part.
41
While I agree with Part II of the Court's opinion, holding that § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) (1970 ed., Supp. V), does not impose a limitation on the power of the EEOC to file suit in a federal court, I do not agree with the Court's conclusion in Part III that the EEOC is not bound by any limitations period at all. The Court's actions, and the reasons which it assigns for them, suggest that it is more concerned with limitlessly expanding the important underlying statutory policy than it is with considerations traditionally dealt with by judges. Since I believe that a consistent line of opinions from this Court holding that, in the absence of a federal limitations period, the applicable state limitations period will apply, is being ignored by a process of unwarranted judicial legislation, I would reverse the judgment of the Court of Appeals in this case.
42
* Since I agree with the Court that the Act contains no limitation on the time during which an enforcement suit may be brought by the EEOC, I also agree with it that the relevant inquiry is whether the most analogous state statute of limitations applies. Unless the United States is suing in its sovereign capacity, a matter which I treat below, the answer one would have derived before today from the opinions of this Court over a period of 140 years would surely have been "yes." See, e. g., McCluny v. Silliman, 3 Pet. 270, 277, 7 L.Ed. 676 (1830); Campbell v. Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280 (1895); McClaine v. Rankin, 197 U.S. 154, 25 S.Ct. 410, 49 L.Ed. 702 (1905); Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (1906); O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914); Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966); Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).
43
The Court, however, today relies on basically two interrelated reasons for refusing to apply California's applicable statute of limitations to suits brought by the EEOC. First, the Court postulates that "the Court has not mechanically applied a state statute of limitations simply because a limitations period is absent from the federal statute." Ante, at 367. Second, "State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies." Ibid. Both of these assertions are created out of whole cloth; contrary to their tenor, neither statement as applied to statutes of limitations, draws sustenance from any cases whatsoever. Rather, anything more than a superficial examination of precedent reveals that they are contrary to the established line of decisions of this Court.
44
This Court has long followed the rule that, unless the United States was suing in its sovereign capacity, "in the absence of any provision of the act of Congress creating the liability, fixing a limitation of time for commencing actions to enforce it, the statute of limitations of the particular State is applicable." McClaine v. Rankin, supra, 197 U.S., at 158, 25 S.Ct., at 411. See also Cope v. Anderson, 331 U.S. 461, 463, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602 (1947). The consistent nature of this history was described in Auto Workers v. Hoosier Cardinal Corp., supra, 383 U.S., at 703-704, 86 S.Ct., at 1112:
45
"As early as 1830, this Court held that the state statutes of limitations govern the timeliness of federal causes of action unless Congress has specifically provided otherwise. McCluny v. Silliman, 3 Pet. 270, 277, 7 L.Ed. 676. In 1895, the question was re-examined in another context, but the conclusion remained firm. Campbell v. Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280. Since that time, state statutes have repeatedly supplied the periods of limitations for federal causes of action when federal legislation has been silent on the question. Yet when Congress has disagreed with such an interpretation of its silence, it has spoken to overturn it by enacting a uniform period of limitations. Against this background, we cannot take the omission in the present statute as a license to judicially devise a uniform time limitation for § 301 suits." (Citations omitted.)
46
This general policy has been recently reaffirmed with respect to lawsuits brought under 42 U.S.C. § 1981, see Johnson v. Railway Express Agency, supra, 421 U.S., at 462, 95 S.Ct., at 1721; Runyon v. McCrary, supra, 427 U.S., at 180, 96 S.Ct., at 2599. Indeed, Johnson noted that "the express terms of 42 U.S.C. § 1988 suggest" that there is not "anything peculiar to a federal civil rights action that would justify special reluctance in applying state law." 421 U.S., at 464, 95 S.Ct., at 1722. The Court fails to point to any case not involving the United States in its sovereign capacity, in which, the federal statute being silent, the applicable state limitations period was disregarded in favor of either a judge-made limitations period or, as here, no limitations period at all. There is simply no support for the proposition that a federally created right of action should impliedly be without temporal limitations. Indeed, Mr. Chief Justice Marshall, writing for the Court in 1805, observed that a case without a limitations period "would be utterly repugnant to the genius of our laws." Adams v. Woods, 2 Cranch 336, 342, 2 L.Ed. 297 (1805). Yet, the Court today, without acknowledging the radical nature of its act, creates precisely such a situation.1
47
As for the second point, I can readily concede that the California Legislature did not specifically consider the federal interests underlying the enactment of Title VII. But this argument begs the question. This Court, in 1830, rejected the argument that a state statute of limitations should not apply because the State had not considered the federal policies. It stated, in McCluny v. Silliman, supra, 3 Pet., at 277-278, 7 L.Ed. 676:
48
"It is contended that this statute cannot be so construed as to interpose a bar to any remedy sought against an officer of the United States, for a failure in the performance of his duty; that such a case could not have been contemplated by the legislature. . . .
49
"It is not probable that the legislature of Ohio, in the passage of this statute, had any reference to the misconduct of an officer of the United States. Nor does it seem to have been their intention to restrict the provision of the statute to any particular causes for which the action on the case will lie. . . .
50
"Where the statute is not restricted to particular causes of action, but provides that the action, by its technical denomination, shall be barred, if not brought within a limited time, every cause for which the action may be prosecuted is within the statute."
51
Similar arguments were also rejected in construing § 301 of the Labor Management Relations Act, Auto Workers v. Hoosier Cardinal Corp., 383 U.S., at 701-704, 86 S.Ct., at 1110-1113. And in both Johnson v. Railway Express Agency, and Runyon v. McCrary, we followed, without hesitation, state limitations periods even though one would suppose that the federal policies underlying 42 U.S.C. § 1981 were of a magnitude comparable to those of Title VII and even though the general state statute of limitations would hardly have taken these policies into account.
52
The Court apparently rests its case on the authority of three opinions: Johnson v. Railway Express Agency, Auto Workers v. Hoosier Cardinal Corp., and Board of County Commissioners v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313 (1939). None are applicable. Johnson did not state, or hint, that "(s)tate limitations periods will not be borrowed if their application would be inconsistent with the underlying policies of the federal statute." Ante, at 367. Rather, after concluding that the state limitations period applied, it turned, in a separate section of the opinion, to a question of tolling, 421 U.S., at 465, 95 S.Ct., at 1722, where the statement that "(A)lthough state law is our primary guide in this area, it is not, to be sure, our exclusive guide," so heavily relied on by the Court today, is found. Nor does Auto Workers provide support for the Court: pointing to the longstanding history of constant interpretation that when the federal statute does not speak, the state limitations period applies, it rejected the argument that federal uniformity required a federal limitations period by stating that "there is no justification for the drastic sort of judicial legislation that is urged upon us," 383 U.S., at 703, 86 S.Ct., at 1111. The last of the three cases, Board of County Commissioners, is also irrelevant. It involved a suit brought by the United States in its sovereign capacity, to which it is clear state limitations period do not apply, 308 U.S., at 351, 60 S.Ct., at 288. In any case, the language the Court points to, id., at 351-352, 60 S.Ct., at 288-289, is in the context of a discussion of the absorption of substantive rights and liabilities, not in the context of a statute of limitations at all. The two are decisively different. See Auto Workers, 383 U.S., at 703 n. 4, 86 S.Ct., at 1112; see also id., at 701, 86 S.Ct., at 1110-1111.
53
The premises of the majority, then, are supported, not by a slender reed, but by no reed at all. Perhaps the Court's decision can be explained by its apparent fear that the application of the State's limitations period will result in the anomaly of the statute's running before the EEOC is entitled to bring its suit at all. Ante, at 369 n. 23. The Court notes, ante, at 368: "Unlike the typical litigant against whom a statute of limitations might appropriately run, the EEOC is required by law to refrain from commencing a civil action until it has discharged its administrative duties." If this fear is the motivating reason behind the Court's unusual action today, it rests on a misunderstanding of the nature of the application of a State's limitations period to a federal action brought by the EEOC.
54
The EEOC may not bring a suit on behalf of a complainant for a violation of Title VII until 30 days after a charge is filed with the EEOC, 42 U.S.C. § 2000e-5(f)(1) (1970 ed., Supp. V); see ante, at 360. It would appear that, as a matter of federal law, the EEOC's cause of action accrues on that date, which is the date on which it first becomes entitled to sue. See, e. g., Cope v. Anderson, 331 U.S., at 464, 67 S.Ct., at 1341-1342; McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272 (1958). In this case, then, the EEOC would have one year, measured from that time, in which to bring suit under Cal. Code Civ. Proc. Ann. § 340(3) (West Supp. 1977).2 Thus, the fears expressed by the Court are not well grounded. And while it is true that Congress, in enacting Title VII, chose "(c)ooperation and voluntary compliance . . . as the preferred means of achieving" its goals, Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974), this is not, in the context of this case, a reason to ignore the state limitations period. We noted, in Johnson v. Railway Express Agency, 421 U.S., at 465, 95 S.Ct. at 1722, in response to similar arguments, that the "plaintiff . . . may ask the court to stay proceedings until the administrative efforts at conciliation and voluntary compliance have been completed." The EEOC in this case is given 30 days plus the one-year limitations period; the fact, then, that there is a federal policy for the EEOC to attempt to achieve its goals by voluntary compliance does not seem to me to be a sound basis for ignoring state limitations periods. That policy is not without constraints, as the statute itself acknowledges. § 706(f)(1).3 Given that, I am wholly unable to agree that the utilization of state statutes of limitations, which may be "as short as one year," ante, at 371, trenches so severely on the structure or policies of Title VII to warrant this departure from precedent.4
II
55
In this case, Tamar Edelson filed her charge with the EEOC on December 27, 1970, when it was referred to the California Fair Employment Practices Commission in accordance with the provisions of 42 U.S.C. § 2000e-5(c). When that agency took no action, the charge was formally filed with the EEOC on March 9, 1971. The EEOC, then, had 1 year and 30 days from that point in which to investigate and attempt to secure voluntary compliance. Since the EEOC is directed to "make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the (formal) filing of the charge," 42 U.S.C. § 2000e-5(b) (1970 ed., Supp. V), this time period of more than one year would appear ample to ensure that what the Court perceives to be federal policy, including voluntary settlement negotiations, is not unduly denigrated.5 Yet, here, the EEOC did not file its action in the District Court until February 22, 1974, almost three years after the formal filing of the charge. Since this is clearly outside the state limitations period, I would hold the action barred unless the EEOC is to be considered to be suing on behalf of the United States in its sovereign capacity, a matter to which I now turn.
56
Insofar as the EEOC seeks to recover backpay for individuals, it stands in the shoes of the individuals, and represents them in a suit the individuals would otherwise be entitled to bring, 42 U.S.C. § 2000e-5(f)(1) (1970 ed., Supp. V). Not only is the United States itself not a party to the suit, but the EEOC is vindicating a right which a private party was entitled to vindicate in his own right. Cf. Alexander v. Gardner-Denver Co., supra, 415 U.S., at 45, 94 S.Ct., at 1018. Since the United States is not suing in its sovereign capacity, there is no reason to exempt these suits from the general application of state limitations statutes. The scope of the relevant inquiry was formed by this Court in United States v. Beebe, 127 U.S. 338, 344, 8 S.Ct. 1083, 1086, 32 L.Ed. 121 (1888):
57
"The principle that the United States are not bound by any statute of limitations, nor barred by any laches of their officers, however gross, in a suit brought by them as a sovereign Government to enforce a public right, or to assert a public interest, is established past all controversy or doubt. United States v. Nashville, etc., Railway Company, 118 U.S. 120, 125, 6 S.Ct. 1006 (30 L.Ed. 81), and cases there cited. But this case stands upon a different footing, and presents a different question. The question is, Are these defences available to the defendant in a case where the Government, although a nominal complainant party, has no real interest in the litigation, but has allowed its name to be used therein for the sole benefit of a private person?"
58
As this has been interpreted, the decisive fact which excepts the general applicability of these statutes is that the United States is suing to enforce "its rights." United States v. Summerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 1020, 84 L.Ed. 1283 (1940) (emphasis added); see also United States v. Nashville, C. & St. L. R. Co., 118 U.S. 120, 125, 6 S.Ct. 1006, 1008, 30 L.Ed. 81 (1886); United States v. Des Moines Navigation & R. Co., 142 U.S. 510, 538-539, 12 S.Ct. 308, 315-316, 35 L.Ed. 1099 (1892); United States v. Bell Telephone Co., 167 U.S. 224, 264-265, 17 S.Ct. 809, 819-820, 42 L.Ed. 144 (1897); French Republic v. Saratoga Vichy Spring Co., 191 U.S. 427, 438, 24 S.Ct. 145, 147, 48 L.Ed. 247 (1903). In Beebe itself, the Court acknowledged that "(t)he Government is charged with the duty . . . to protect (the public domain) from trespass and unlawful appropriation . . . ." 127 U.S., at 342, 8 S.Ct., at 1085. See also Moran v. Horsky, 178 U.S. 205, 213, 20 S.Ct. 856, 859, 44 L.Ed. 1038 (1900). Yet this "interest" was not sufficient to make it a suit by the sovereign, unbounded by a limitations period. While the Government may be interested in the vindication of the policies enunciated in Title VII, cf. Franks v. Bowman Transportation Co., 424 U.S. 747, 778 n. 40, 96 S.Ct. 1251, 1271, 47 L.Ed.2d 444 (1976) as, presumably, it would be interested in vindicating the policies expressed in all congressional enactments that is not the decisive fact. It is not "interest," but whether the sovereign is suing to recover in its own right. Since here the suit is to recover backpay for an individual that could have brought her own suit, it is impossible to think that the EEOC was suing in the sovereign capacity of the United States. Cf. United States v. Beebe, supra, 127 U.S., at 346, 8 S.Ct., at 1087-1088. Rather, it is suing as a conduit for the recovery of sums due an individual citizen rather than the public treasury. The Court does not suggest otherwise.
59
The conclusion should be no different when we turn to the issue of injunctive relief. The decisive fact remains the same: The sovereign is not suing to redress "its" injury, rather, it is seeking relief that the complaining individual otherwise would have been entitled to seek. While injunctive relief may appear more "broad based," it nonetheless is redress for individuals. The United States gains nothing tangible as a result of the suit. It does, to be sure, vindicate a congressional policy by seeking to enjoin practices proscribed by Title VII, but, it bears repeating, presumably the Government vindicates some congressional policy whenever it sues. That, then, cannot be the test, for it would exalt form (who brings the suit) over substance (whom the suit directly benefits). For these reasons, I am unable to agree with the Ninth Circuit that because the EEOC promotes public policy by its prayer for injunctive relief, it therefore "seeks to vindicate rights belonging to the United States as sovereign," 535 F.2d 533, 537. This reason does not adequately distinguish a prayer for injunctive relief from a prayer by the EEOC for backpay for individuals.6
60
Since I believe that the EEOC's suit is barred by the running of the statute of limitations in Cal.Code Civ.Proc.Ann. § 340(3) (West Supp. 1977), I respectfully dissent.
1
The charge specified that the most recent act of discrimination was on October 1, 1970.
2
Civil Rights Act of 1964, §§ 706(b), (d), 78 Stat. 259, 42 U.S.C. § 2000e-5(b), (d); Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679.
3
The 1972 amendments to Title VII were made applicable "with respect to charges pending with the Commission on the date of enactment." § 14, 86 Stat. 113. The District Court also held that EEOC enforcement suits, such as this one, based on charges within the coverage of § 14 must be brought within 180 days of March 24, 1972, the effective date of the amendments.
4
The District Court's decision is reported in 12 FEP Cases 1298.
5
Civil Rights Act of 1964, § 706(a), 78 Stat. 259, 42 U.S.C. § 2000e-5(a).
6
§ 706(e), 42 U.S.C. § 2000e-5(e).
7
86 Stat. 103, 42 U.S.C. § 2000e et seq. (1970 ed., Supp. V), amending Civil Rights Act of 1964, 78 Stat. 253. All subsequent citations to Title VII in this opinion are to the 1964 Act as amended.
8
§ 706(e), 42 U.S.C. § 2000e-5(e) (1970 ed., Supp. V). If a charge has been initially filed with or referred to a state or local agency, it must be filed with the EEOC within 300 days after the practice occurred or within 30 days after notice that the state or local agency has terminated its proceeding, whichever is earlier. Ibid.
9
§ 706(b), 42 U.S.C. § 2000e-5(b) (1970 ed., Supp. V).
10
Ibid.
11
§ 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) (1970 ed., Supp. V). In the case of a government, governmental agency, or political subdivision, the EEOC is required, upon failure of conciliation, to refer the case to the Attorney General who may then bring a civil action. Ibid.
12
The section in the House Committee bill provided, in relevant part:
"If (1) the Commission determines that there is no reasonable cause to believe the charge is true and dismisses the charge . . ., (2) finds no probable jurisdiction and dismisses the charge, or (3) within one hundred and eighty days after a charge is filed with the Commission . . ., the Commission has not either (i) issued a complaint . . ., (ii) determined that there is not reasonable cause to believe that the charge is true and dismissed the charge, . 27 . or (iii) entered into a conciliation agreement . . ., the Commission shall so notify the person aggrieved and within sixty days after the giving of such notice a civil action may be brought . . . by the person claiming to be aggrieved . . . . Upon timely application, the court may, in its discretion, permit the Commission to intervene in such civil action if it certifies that the case is of general public importance. Upon the commencement of such civil action, the Commission shall be divested of jurisdiction over the proceeding and shall take no further action with respect thereof (sic) . . .." H.R.1746, 92d Cong., 1st Sess., § 8(j) (1971) reprinted in H.R.Rep.No. 92-238, pp. 54-55 (1971).
13
Id., at 12.
14
H.R.9247, 92 Cong., 1st Sess., § 3(c) (1971).
15
S.2515, 92 Cong., 1st Sess., § 4(a) (1971); S.2617, 92d Cong., 1st Sess., § 3(c) (1971).
16
S.Rep.No. 92-415, p. 23 (1971).
17
Id., at 24, 40.
18
At one point in the debates Senator Javits, a sponsor of the Committee bill, sought to amend the substitute bill to clarify the relationship between EEOC and private lawsuits, by providing that "if within thirty days after a charge is filed with the Commission . . . the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall bring a civil action . . . ." Senator Dominick objected to the substitution of the word "shall" for "may" and suggested that "in the interest of flexibility in the Commission's schedule, and in the interest of flexibility in working something out through voluntary compliance, it would be far better to put in the word 'may.' " In the exchange that followed, both Senators manifested their understanding that the 180-day provision in the Dominick amendment served the same purpose as the analogous provision in the Committee bill. 118 Cong.Rec. 1068-1069 (1972). Senator Javits later agreed to the use of the word "may," and Senator Dominick responded as follows:
"I think this change is very meritorious, as I pointed out in my first statement. I do not think the Commission should be mandated on what date an agency should bring suit when we are trying to work out matters the best we can by conciliation." Id., at 1069.
19
Id., at 4942.
20
Id., at 7168; see id., at 7565.
21
In addition to the Court of Appeals for the Ninth Circuit in the present case, six other Courts of Appeals have reached this conclusion. EEOC v. E. I. du Pont de Nemours & Co., 516 F.2d 1297 (CA3); EEOC v. Cleveland Mills Co., 502 F.2d 153 (CA4); EEOC v. Louisville & Nashville R. Co., 505 F.2d 610 (CA5); EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (CA6); EEOC v. Meyer Bros. Drug Co., 521 F.2d 1364 (CA8); EEOC v. Duval Corp., 528 F.2d 945 (CA10).
22
The two Courts of Appeals that have considered this question have reached differing conclusions. EEOC v. Kimberly-Clark Corp., supra, at 1359-1360 (state limitations not applicable); EEOC v. Griffin Wheel Co., 511 F.2d 456 (CA5) (state limitations applicable to backpay suits only).
23
Since California has created a state agency with authority to provide a remedy for employment discrimination, Cal. Labor Code Ann. §§ 1410-1433 (West 1971), an aggrieved party in that State may file a charge with the EEOC as long as 300 days after the allegedly unlawful act. See n. 8, supra. Under § 706(b) the EEOC may then take at least 120 days to investigate the charge and make its determination of reasonable cause. Thus, even if the aggrieved party and the EEOC act within the 420-day period expressly authorized by the Act, the California limitations period applied by the District Court would expire before the EEOC had an opportunity to begin any conciliation efforts, let alone bring a lawsuit.
24
In his testimony before the House Committee, William Brown III, Chairman of the EEOC, stated that as of February 20, 1971, there was a backlog of 25,195 pending charges. Equal Employment Opportunities Enforcement Procedures, Hearings on H.R.1746 before the General Subcommittee on Labor of the House Committee on Education and Labor, 92d Cong., 1st Sess., 81 (1971). By the time Chairman Brown testified before the Senate Committee, the backlog had increased to nearly 32,000 cases and further increases were expected. Equal Employment Opportunity Enforcement Act of 1971, Hearings on S.2515, S.2617, H.R.1746, before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., 71 (1971).
25
See, e. g., 117 Cong.Rec. 31959 (1971) (remarks of Rep. Martin); id., at 31972 (remarks of Rep. Erlenborn); 118 Cong.Rec. 594-595 (1972) (remarks of Sen. Dominick); id., at 699-700 (remarks of Sen. Fannin); id., at 944 (remarks of Sens. Talmadge and Chiles); id., at 2386 (remarks of Sen. Allen); id., at 3136-3137 (remarks of Sens. Gurney and Allen); id., at 3969-3973 (remarks of Sens. Javits, Cooper, Dominick, Williams, and Allen).
The company contends that the numerous references in the debates to the EEOC's backlog and delays demonstrate that by adopting the court enforcement plan Congress intended to restrict the time allowed for investigation and conciliation of a charge. Nearly all of the references, however, were in the context of discussions of whether enforcement after conciliation efforts had failed could be accomplished more expeditiously through an administrative process or through lawsuits in the federal courts. The concern, therefore, was with the additional delays that complainants would suffer if the EEOC were given the task of conducting its own hearings and issuing cease-and-desist orders. Congressional concern over delays during the investigation and conciliation process was resolved by providing complainants with the continuing opportunity to withdraw their cases from the EEOC and bring private suits. See Part II, supra.
26
§§ 701(a), (b), 702, 42 U.S.C. §§ 2000e(a), (b), 2000e-1 (1970 ed., Supp. V). The number of state and local governmental employees who would be brought under the jurisdiction of the EEOC was estimated to be more than 10 million. 117 Cong.Rec. 31961 (1971) (remarks of Rep. Perkins); 18 Cong.Rec. 699 (1972) (remarks of Sen. Fannin). The elimination of the exemption for nonreligious educational institutions added an estimated 4.3 million employees. Id., at 4931 (remarks of Sen. Cranston).
27
§ 707(c), 42 U.S.C. § 2000e-6(c) (1970 ed., Supp. V).
28
§ 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) (1970 ed., Supp. V).
29
The House bill provided that the EEOC serve notice of the charge on the alleged violator within five days; the Senate bill required notice within 10 days. Both bills included a 180-day limitation on an aggrieved party's filing of a charge. S.Rep.No. 92-681, pp. 16-17 (1972).
30
Because the bill reported by the House Committee did not require notice of a charge within any specific time, the dissenters from the Committee Report urged that the 180-day filing limitation be amended to require the EEOC to give notice within five days, or some other reasonable time, after a charge had been filed. H.R.Rep.No. 92-238, p. 66 (1971). On the floor of the House, Congressman Erlenborn explained that the amendment was for the purpose of
"giving notice to the party charged (so) that he would have the opportunity to gather and preserve the evidence with which to sustain himself when formal charges are filed and subsequent enforcement proceedings are instituted." 117 Cong.Rec. 31972 (1971).
The requirement of reasonable notice quickly received the support of proponents of the Committee bill. Id., at 31783-31784 (remarks of Rep. Dent); id., at 31961 (remarks of Rep. Perkins). In the Senate a 10-day-notice provision was included in the bill reported out of Committee in order "to protect fully the rights of the person or persons against whom the charge is filed." S.Rep.No. 92-415, p. 25 (1971).
31
§§ 706(b), (e), 42 U.S.C. §§ 2000e-5(b), (e) (1970 ed., Supp. V).
32
Prompt notice of a reasonable-cause determination also serves to cure any deficiencies in the 10-day notice that may result from EEOC amendment of the claimed violation after investigation. See EEOC v. General Electric Co., 532 F.2d 359, 366 (CA4); EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 455 (CA5); EEOC v. Kimberly-Clark Corp., 511 F.2d, at 1363. See also NLRB v. Fant Milling Co., 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243; National Licorice Co. v. NLRB, 309 U.S. 350, 367-369, 60 S.Ct. 569, 578, 580, 84 L.Ed. 799.
1
In Campbell v. Haverhill, 155 U.S. 610, 615-616, 15 S.Ct. 217, 219, 39 L.Ed. 280 (1895), this Court stated that it might not be necessary to follow a state statute of limitations which discriminated against or was "passed in manifest hostility to Federal rights or jurisdiction" or which gave such an unreasonably limited time to sue so as to "be within the competency of the courts to declare the same unconstitutional and void." These narrowly delimited exceptions are wholly different from the approach the Court takes today in looking to whether the state statute "will not frustrate or interfere with the implementation of national policies." Ante, at 367. (Emphasis added.) This open-ended standard would seem to render wholly superfluous the narrow exceptions discussed in Campbell.
2
The District Court determined that this is the applicable statute of limitations.
3
The Act gives the complaining party the right to disrupt the ostensible federal policy of voluntary settlement by filing suit during the "window" period from 180 to 270 days after "the filing of the charge or the expiration of any period of reference (from a state agency)." 42 U.S.C. § 2000e-5(f)(1) (1970 ed., Supp. V). The reason given for this option was that "the person aggrieved should (not) have to endure lengthy delays if the agency does not act with due diligence and speed." 118 Cong.Rec. 4942 (1972); see id., at 7168. In light of this, it is odd to rely on the policy of "(c)ooperation and voluntary compliance" as invested with such overpowering importance as to sustain a result different from that reached in a long line of precedents prior to today. As we noted in Alexander v. Gardner Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed. 147 (1974), the original intent in enacting Title VII was to establish an administrative procedure whereby the EEOC "would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit." (Emphasis added.) Whatever validity the administrative-procedure argument may have, then, is greatly weakened after the expiration of that 180-day period.
4
In both Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), and Electrical Radio and Machine Workers v. Robbins & Myers, Inc., 429 U.S. 229, 96 S.Ct. 1723, 48 L.Ed.2d 193 (1976), this Court rejected arguments based, in part, on contentions that Title VII plaintiffs should be treated with special deference because Title VII served to vindicate important public interests. I fear that the Court today adopts, sub silentio, these previously rejected "Title VII-is-different" arguments as a way of approaching a statute notable for its expanses of congressional silence.
5
While I agree that it is impossible to read 42 U.S.C. § 2000e-5(f)(1) (1970 ed., Supp. V) as a time limitation on the EEOC's right to bring suit, the existence of that limitations period on the individual's right to bring suit is not without significance. I can perceive of no reason, and the legislative debates suggest none, why the private party's right to sue is cut off 90 days after it is given, unless it is intended as a form of a limitations period. Yet, if Congress was concerned with a limitations period when the suit could be brought by the complaining party, it suggests that the Court is wrong in asserting that "the benchmark, for purposes of a statute of limitations" is simply the "commencement of the proceeding before the administrative body." Ante, at 372. It also leads me to conclude that there is no reason not to allow the normal presumption to operate in this case, by limiting the EEOC's right of action by the most analogous state limitations period. Cf. Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704, 86 S.Ct. 1107, 1112-1113, 16 L.Ed.2d 192 (1966). I see nothing which affirmatively rebuts the longstanding doctrine that "the silence of Congress has been interpreted to mean that it is federal policy to adopt the local law of limitations." Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946).
6
The EEOC is only entitled to bring suit after a complaint has been filed with it. Normally, therefore, it brings suit only after a complaining individual has filed a charge with it. "Individual grievants usually initiate the Commission's investigatory and conciliatory procedures." Alexander v. Gardner-Denver Co., 415 U.S., at 45, 94 S.Ct., at 1018. While the 1972 amendments allow members of the EEOC to file charges, 42 U.S.C. § 2000e-5(b) (1970 ed., Supp. V), this is not the normal method of initiating suit. Alexander, supra, at 45, 94 S.Ct., at 1018. Since this case does not involve the situation where the complaining individual is not the allegedly aggrieved party, I do not need to deal with the question of whether a different result would follow when the EEOC brings suit upon a complaint initiated by one of its members.
| 12
|
432 U.S. 333
97 S.Ct. 2434
53 L.Ed.2d 383
James B. HUNT, Jr., Governor of the State of North Carolina, et al., Appellants,v.WASHINGTON STATE APPLE ADVERTISING COMMISSION.
No. 76-63.
Argued Feb. 22, 1977.
Decided June 20, 1977.
Syllabus
Appellee, a statutory agency for the promotion and protection of the Washington State apple industry and composed of 13 state growers and dealers chosen from electoral districts by their fellow growers and dealers, all of whom by mandatory assessments finance appellees operations, brought this suit challenging the constitutionality of a North Carolina statute requiring that all apples sold or shipped into North Carolina in closed containers be identified by no grade on the container other than the applicable federal grade or a designation that the apples are not graded. A three-judge District Court granted the requested injunctive and declaratory relief, holding that appellee had standing to challenge the statute, that the $10,000 jurisdictional amount of 28 U.S.C. § 1331 was satisfied, and that the challenged statute unconstitutionally discriminated against commerce insofar as it affected the interstate shipment of Washington apples, Held:
1. Appellee has standing to bring this action in a representational capacity. Pp. 341-345.
(a) An association has standing to bring suit on behalf of its members when (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation in the lawsuit of each of the individual members. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343. Pp. 342-343.
(b) The prerequisites to associational standing described in Warth are clearly present here: (1) At the risk of otherwise losing North Carolina accounts, some Washington apple growers and dealers had (at a per-container cost of 5¢ to 15¢) obliterated Washington State grades from the large volume of North Carolina-bound containers; and they had stopped using preprinted containers, thus diminishing the efficiency of their marketing operations; (2) appellee's attempt to remedy these injuries is central to its purpose of protecting and enhancing the Washington apple market; and (3) neither appellee's constitutional claim nor the relief requested requires individualized proof. Pp. 343-344.
(c) Though appellee is a state agency, it is not on that account precluded from asserting the claims of the State's apple growers and dealers since for all practical purposes appellee performs the functions of a traditional trade association. While the apple growers are not "members" of appellee in the traditional trade association sense, they possess all the indicia of organization membership (viz., electing the members, being the only ones to serve on the Commission, and financing its activities), and it is of no consequence that membership assessments are mandatory. Pp. 344-345.
(d) Appellee's own interests may be adversely affected by the outcome of this litigation, since the annual assessments that are used to support its activities and which are tied to the production of Washington apples could be reduced if the market for those apples declines as a result of the North Carolina statute. P. 345.
2. The requirements of § 1331 are satisfied. Since appellee has standing to litigate its constituents' claims, it may rely on them to meet the requisite amount of $10,000 in controversy. And it does not appear "to a legal certainty" that the claims of at least some of the individual growers and dealers will not come to that amount in view of the substantial annual sales volume of Washington apples in North Carolina (over $2 million) and the continuing nature of the statute's interference with the Washington apple industry, coupled with the evidence in the record that growers and dealers have suffered and will continue to suffer losses of various types from the operation of the challenged statute. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845. Pp. 346-348.
3. The North Carolina statute violates the Commerce Clause by burdening and discriminating against the interstate sale of Washington apples. Pp. 348-354.
(a) The statute raises the costs of doing business in the North Carolina market for Washington growers and dealers while leaving unaffected their North Carolina counterparts, who were still free to market apples under the federal grade or none at all. Pp. 350-351.
(b) The statute strips the Washington apple industry of the competitive and economic advantages it has earned for itself by an expensive, stringent mandatory state inspection and grading system that exceeds federal requirements. By requiring Washington apples to be sold under the inferior grades of their federal counterparts, the North Carolina statute offers the North Carolina apple industry the very sort of protection against out-of-state competition that the Commerce Clause was designed to prohibit. Pp. 351-352.
(c) Even if the statute was not intended to be discriminatory and was enacted for the declared purpose of protecting consumers from deception and fraud because of the multiplicity of state grades, the statute does remarkably little to further that goal, at least with respect to Washington apples and grades, for it permits marketing of apples in closed containers under no grades at all and does nothing to purify the flow of information at the retail level. Moreover, Washington grades could not have led to the type of deception at which the statute was assertedly aimed, since those grades equal or surpass the comparable federal standards. Pp. 352-354.
(d) Nondiscriminatory alternatives to the outright ban of Washington State grades are readily available. Pp. 354. 408 F.Supp. 857, affirmed.
John R. Jordan, Jr., Raleigh, N. C., for appellants.
Slade Gorton, Atty. Gen., Olympia, Wash., for appellee.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
In 1973, North Carolina enacted a statute which required, inter alia, all closed containers of apples sold, offered for sale, or shipped into the State to bear "no grade other than the applicable U.S. grade or standard." N.C.Gen.Stat. § 106-189.1 (1973). In an action brought by the Washington State Apple Advertising Commission, a three-judge Federal District Court invalidated the statute insofar as it prohibited the display of Washington State apple grades on the ground that it unconstitutionally discriminated against interstate commerce.
2
The specific questions presented on appeal are (a) whether the Commission had standing to bring this action; (b) if so, whether it satisfied the jurisdictional-amount requirement of 28 U.S.C. § 1331;1 and (c) whether the challenged North Carolina statute constitutes an unconstitutional burden on interstate commerce.
3
(1)
4
Washington State is the Nation's largest producer of apples, its crops accounting for approximately 30% of all apples grown domestically and nearly half of all apples shipped in closed containers in interstate commerce. As might be expected, the production and sale of apples on this scale is a multimillion dollar enterprise which plays a significant role in Washington's economy. Because of the importance of the apple industry to the State, its legislature has undertaken to protect and enhance the reputation of Washington apples by establishing a stringent, mandatory inspection program, administered by the State's Department of Agriculture, which requires all apples shipped in interstate commerce to be tested under strict quality standards and graded accordingly. In all cases, the Washington State grades, which have gained substantial acceptance in the trade, are the equivalent of, or superior to, the comparable grades and standards adopted by the United States Department of Agriculture (USDA). Compliance with the Washington inspection scheme costs the State's growers approximately $1 million each year.
5
In addition to the inspection program, the state legislature has sought to enhance the market for Washington apples through the creation of a state agency, the Washington State Apple Advertising Commission, charged with the statutory duty of promoting and protecting the State's apple industry. The Commission itself is composed of 13 Washington apple growers and dealers who are nominated and elected within electoral districts by their fellow growers and dealers. Wash.Rev.Code §§ 15.24.020, 15.24.030 (1974). Among its activities are the promotion of Washington apples in both domestic and foreign markets through advertising, market research and analysis, and public education, as well as scientific research into the uses, development, and improvement of apples. Its activities are financed entirely by assessments levied upon the apple industry, § 15.24.100; in the year during which this litigation began, these assessments totaled approximately $1.75 million. The assessments, while initially fixed by statute, can be increased only upon the majority vote of the apple growers themselves. § 15.24.090.
6
In 1972, the North Carolina Board of Agriculture adopted an administrative regulation, unique in the 50 States, which in effect required all closed containers of apples shipped into or sold in the State to display either the applicable USDA grade or none at all. State grades were expressly prohibited.2 In addition to its obvious consequence prohibiting the display of Washington State apple grades on containers of apples shipped into North Carolina, the regulation presented the Washington apply industry with a marketing problem of potentially nationwide significance. Washington apple growers annually ship in commerce approximately 40 million closed containers of apples, nearly 500,000 of which eventually find their way into North Carolina, stamped with the applicable Washington State variety and grade. It is the industry's practice to purchase these containers preprinted with the various apple varieties and grades, prior to harvest. After these containers are filled with apples of the appropriate type and grade, a substantial portion of them are placed in cold-storage warehouses where the grade labels identify the product and facilitate its handling. These apples are then shipped as needed throughout the year; after February 1 of each year, they constitute approximately two-thirds of all apples sold in fresh markets in this country. Since the ultimate destination of these apples is unknown at the time they are placed in storage, compliance with North Carolina's unique regulation would have required Washington growers to obliterate the printed labels on containers shipped to North Carolina, thus giving their product a damaged appearance. Alternatively, they could have changed their marketing practices to accommodate the needs of the North Carolina market, i. e., repack apples to be shipped to North Carolina in containers bearing only the USDA grade, and/or store the estimated portion of the harvest destined for that market in such special containers. As a last resort, they could discontinue the use of the preprinted containers entirely. None of these costly and less efficient options was very attractive to the industry. Moreover, in the event a number of other States followed North Carolina's lead, the resultant inability to display the Washington grades could force the Washington growers to abandon the State's expensive inspection and grading system which their customers had come to know and rely on over the 60-odd years of its existence.
7
With these problems confronting the industry, the Washington State Apple Advertising Commission petitioned the North Carolina Board of Agriculture to amend its regulation to permit the display of state grades. An administrative hearing was held on the question but no relief was granted. Indeed, North Carolina hardened its position shortly thereafter by enacting the regulation into law:
8
"All apples sold offered for sale, or shipped into this State in closed containers shall bear on the container, bag or other receptacle, no grade other than the applicable U.S. grade or standard or the marking 'unclassified,' 'not graded' or 'grade not determined.' " N.C.Gen.Stat. § 106-189.1 (1973).
9
Nonetheless, the Commission once again requested an exemption which would have permitted the Washington apple growers to display both the United States and the Washington State grades on their shipments to North Carolina. This request, too, was denied.
10
Unsuccessful in its attempts to secure administrative relief, the Commission3 instituted this action challenging the constitutionality of the statute in the United States District Court for the Eastern District of North Carolina. Its complaint, which invoked the District Court's jurisdiction under 28 U.S.C. §§ 1331 and 1343, sought a declaration that the statute violated, inter alia, the Commerce Clause of the United States Constitution, Art. I, § 8, cl. 3, insofar as it prohibited the display of Washington State grades, and prayed for a permanent injunction against its enforcement in this manner. A three-judge Federal District Court was convened pursuant to 28 U.S.C. §§ 2281 and 2284 to consider the Commission's constitutional attack on the statute.
11
After a hearing, the District Court granted the requested relief. 408 F.Supp. 857 (1976). At the outset, it held that the Commission had standing to challenge the statute both in its own right and on behalf of the Washington State growers and dealers, and that the $10,000 amount-in-controversy requirement of § 1331 had been satisfied.4 408 F.Supp., at 858. Proceeding to the merits, the District Court found that the North Carolina statute, while neutral on its face, actually discriminated against Washington State growers and dealers in favor of their local counterparts. Id., at 860-861. This discrimination resulted from the fact that North Carolina, unlike Washington, had never established a grading and inspection system. Hence, the statute had no effect on the existing practices of North Carolina producers; they were still free to use the USDA grade or none at all. Washington growers and dealers, on the other hand, were forced to alter their long-established procedures, at substantial cost, or abandon the North Carolina market. The District Court then concluded that this discrimination against out-of-state competitors was not justified by the asserted local interest the elimination of deception and confusion from the marketplace arguably furthered by the statute. Indeed, it noted that the statute was "irrationally" drawn to accomplish that alleged goal since it permitted the marketing of closed containers of apples without any grade at all. Id., at 861-862. The court therefore held that the statute unconstitutionally discriminated against commerce, insofar as it affected the interstate shipment of Washington apples,5 and enjoined its application. This appeal followed and we postponed further consideration of the question of jurisdiction to the hearing of the case on the merits sub nom. Holshouser v. Washington State Apple Advertising Comm'n, 429 U.S. 814, 97 S.Ct. 54, 50 L.Ed.2d 73 (1976).
12
(2)
13
In this Court, as before, the North Carolina officials vigorously contest the Washington Commission's standing to prosecute this action, either in its own right, or on behalf of that State's apple industry which it purports to represent. At the outset, appellants maintain that the Commission lacks the "personal stake" in the outcome of this litigation essential to its invocation of federal-court jurisdiction. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The Commission, they point out, is a state agency, not itself engaged in the production and sale of Washington apples or their shipment into North Carolina. Rather, its North Carolina activities are limited to the promotion of Washington apples in that market through advertising.6 Appellants contend that the challenged statute has no impact on that activity since it prohibits only the display of state apple grades on closed containers of apples. Indeed, since the statute imposed no restrictions on the advertisement of Washington apples or grades other than the labeling ban, which affects only those parties actually engaged in the apple trade, the Commission is said to be free to carry on the same activities that it engaged in prior to the regulatory program. Appellants therefore argue that the Commission suffers no injury, economic or otherwise, from the statute's operation, and, as a result, cannot make out the "case or controversy" between itself and the appellants needed to establish standing in the constitutional sense. E. g., Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 260-264, 97 S.Ct. 555, 561-563, 50 L.Ed.2d 450 (1977); Warth v. Seldin, 422 U.S. 490, 498-499, 95 S.Ct. 2197, 2204-2205, 45 L.Ed.2d 343 (1975).
14
Moreover, appellants assert, the Commission cannot rely on the injuries which the statute allegedly inflicts individually or collectively on Washington apple growers and dealers in order to confer standing on itself. Those growers and dealers, appellants argue, are under no disabilities which prevent them from coming forward to protect their own rights if they are, in fact, injured by the statute's operation. In any event, appellants contend that the Commission is not a proper representative of industry interests. Although this Court has recognized that an association may have standing to assert the claims of its members even where it has suffered no injury from the challenged activity, e. g., Warth v. Seldin, supra, at 511, 95 S.Ct., at 2211; National Motor Freight Traffic Association v. United States, 372 U.S. 246, 83 S.Ct. 688, 9 L.Ed.2d 709 (1963), the Commission is not a traditional voluntary membership organization such as a trade association, for it has no members at all. Thus, since the Commission has no members whose claims it might raise, and since it has suffered no "distinct and palpable injury" to itself, it can assert no more than an abstract concern for the well-being of the Washington apple industry as the basis for its standing. That type of interest, appellants argue, cannot "substitute for the concrete injury required by Art. III." Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976).
15
If the Commission were a voluntary membership organization a typical trade association its standing to bring this action as the representative of its constituents would be clear under prior decisions of this Court. In Warth v. Seldin, supra, we stated:
16
"Even in the absence of injury to itself, an association may have standing solely as the representative of its members. . . . The association must allege 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. . . . So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction." 422 U.S., at 511, 95 S.Ct., at 2212.
17
See also Simon v. Eastern Ky. Welfare Rights Org., supra, at 39-40, 96 S.Ct., at 1925; Meek v. Pittenger, 421 U.S. 349, 355-356 n. 5, 95 S.Ct. 1753, 1758, 44 L.Ed.2d 217 (1975); Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972); National Motor Freight Ass'n v. United States, supra. We went on in Warth to elaborate on the type of relief that an association could properly pursue on behalf of its members:
18
"(W)hether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind." 422 U.S., at 515, 95 S.Ct., at 2213.
19
Thus we have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
20
The prerequisites to "associational standing" described in Warth are clearly present here. The Commission's complaint alleged, and the District Court found as a fact, that the North Carolina statute had caused some Washington apple growers and dealers (a) to obliterate Washington State grades from the large volume of closed containers destined for the North Carolina market at a cost ranging from 5 to 15 cents per carton; (b) to abandon the use of preprinted containers, thus diminishing the efficiency of their marketing operations; or (c) to lose accounts in North Carolina. Such injuries are direct and sufficient to establish the requisite "case or controversy" between Washington apple producers and appellants. Moreover, the Commission's attempt to remedy these injuries and to secure the industry's right to publicize its grading system is central to the Commission's purpose of protecting and enhancing the market for Washington apples. Finally, neither the interstate commerce claim nor the request for declaratory and injunctive relief requires individualized proof and both are thus properly resolved in a group context.
21
The only question presented, therefore, is whether, on this record, the Commission's status as a state agency, rather than a traditional voluntary membership organization, precludes it from asserting the claims of the Washington apple growers and dealers who form its constituency. We think not. The Commission, while admittedly a state agency, for all practical purposes, performs the functions of a traditional trade association representing the Washington apple industry. As previously noted, its purpose is the protection and promotion of the Washington apple industry; and, in the pursuit of that end, it has engaged in advertising, market research and analysis, public education campaigns, and scientific research. It thus serves a specialized segment of the State's economic community which is the primary beneficiary of its activities, including the prosecution of this kind of litigation.
22
Moreover, while the apple growers and dealers are not "members" of the Commission in the traditional trade association sense, they possess all of the indicia of membership in an organization. They alone elect the members of the Commission; they alone may serve on the Commission; they alone finance its activities, including the costs of this lawsuit, through assessments levied upon them. In a very real sense, therefore, the Commission represents the State's growers and dealers and provides the means by which they express their collective views and protect their collective interests. Nor do we find it significant in determining whether the Commission may properly represent its constituency that "membership" is "compelled" in the form of mandatory assessments. Membership in a union, or its equivalent, is often required. Likewise, membership in a bar association, which may also be an agency of the State, is often a prerequisite to the practice of law. Yet in neither instance would it be reasonable to suggest that such an organization lacked standing to assert the claims of its constituents.
23
Finally, we note that the interests of the Commission itself may be adversely affected by the outcome of this litigation. The annual assessments paid to the Commission are tied to the volume of apples grown and packaged as "Washington Apples." In the event the North Carolina statute results in a contraction of the market for Washington apples or prevents any market expansion that might otherwise occur, it could reduce the amount of the assessments due the Commission and used to support is activities. This financial nexus between the interests of the Commission and its constituents coalesces with the other factors noted above to "assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S., at 204, 82 S.Ct., at 703; see also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459-460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958).
24
Under the circumstances presented here, it would exalt form over substance to differentiate between the Washington Commission and a traditional trade association representing the individual growers and dealers who collectively form its constituency. We therefore agree with the District Court that the Commission has standing to bring this action in a representational capacity.
(3)
25
We turn next to the appellants' claim that the Commission has failed to satisfy the $10,000 amount-in-controversy requirement of 28 U.S.C. § 1331. As to this, the appellants maintain that the Commission itself has not demonstrated that its right to be free of the restrictions imposed by the challenged statute is worth more than the requisite $10,000. Indeed, they argue that the Commission has made no real effort to do so, but has instead attempted to rely on the actual and threatened injury to the individual Washington apple growers and dealers upon whom the statute has a direct impact. This, they claim, it cannot do, for those growers and dealers are not parties to this litigation. Alternatively, appellants argue that even if the Commission can properly rely on the claims of the individual growers and dealers, it cannot establish the required jurisdictional amount without aggregating those claims. Such aggregation, they argue, is impermissible under this Court's decisions in Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), and Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973).
26
Our determination that the Commission has standing to assert the rights of the individual growers and dealers in a representational capacity disposes of the appellants' first contention. Obviously, if the Commission has standing to litigate the claims of its constituents, it may also rely on them to meet the requisite amount in controversy. Hence, we proceed to the question of whether those claims were sufficient to confer subject-matter jurisdiction on the District Court. In resolving this issue, we have found it unnecessary to reach the aggregation question posed by the appellants for it does not appear to us "to a legal certainty" that the claims of at least some of the individual growers and dealers will not amount to the required $10,000. St. Paul Mercury Indemnity Co. v. Red Cab. Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938).
27
In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation. E. g., McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 181, 56 S.Ct. 780, 781, 80 L.Ed. 1135 (1936); Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 121, 126, 36 S.Ct. 30, 32, 60 L.Ed. 174 (1915); Hunt v. New York Cotton Exchange, 205 U.S. 322, 336, 27 S.Ct. 529, 533, 51 L.Ed. 821 (1907); 1 J. Moore, Federal Practice PP 0.95, 0.96 (2d ed. 1975); C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 3708 (1976). Here, that object is the right of the individual Washington apple growers and dealers to conduct their business affairs in the North Carolina market free from the interference of the challenged statute. The value of that right is measured by the losses that will follow from the statute's enforcement. McNutt, supra, at 181, 56 S.Ct., at 781; Buck v. Gallagher, 307 U.S. 95, 100, 59 S.Ct. 740, 742, 83 L.Ed. 1128 (1939); Kroger Grocery & Baking Co. v. Lutz, 299 U.S. 300, 301, 57 S.Ct. 215, 81 L.Ed. 251 (1936); Packard v. Banton, 264 U.S. 140, 142, 44 S.Ct. 257, 258, 68 L.Ed. 596 (1924).
28
Here the record demonstrates that the growers and dealers have suffered and will continue to suffer losses of various types. For example, there is evidence supporting the District Court's finding that individual growers and shippers lost accounts in North Carolina as a direct result of the statute. Obviously, those lost sales could lead to diminished profits. There is also evidence to support the finding that individual growers and dealers incurred substantial costs in complying with the statute. As previously noted, the statute caused some growers and dealers to manually obliterate the Washington grades from closed containers to be shipped to North Carolina at a cost of from 5 to 15 cents per carton. Other dealers decided to alter their marketing practices, not without cost, by repacking apples or abandoning the use of preprinted containers entirely, among other things. Such costs of compliance are properly considered in computing the amount in controversy. Buck v. Gallagher, supra; Packard v. Banton, supra; Allway Taxi, Inc. v. City of New York, 340 F.Supp. 1120 (S.D.N.Y.), aff'd, 468 F.2d 624 (CA2 1972). In addition, the statute deprived the growers and dealers of their rights to utilize most effectively the Washington State grades which, the record demonstrates, were of long standing and had gained wide acceptance in the trade. The competitive advantages thus lost could not be regained without incurring additional costs in the form of advertising, etc. Cf. Spock v. David, 502 F.2d 953, 956 (CA3 1974), rev'd on other grounds, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). Moreover, since many apples eventually shipped to North Carolina will have already gone through the expensive inspection and grading procedure, the challenged statute will have the additional effect of causing growers and dealers to incur inspection costs unnecessarily.
29
Both the substantial volume of sales in North Carolina the record demonstrates that in 1974 alone, such sales were in excess of $2 million7 and the continuing nature of the statute's interference with the business affairs of the Commission's constituents, preclude our saying "to a legal certainty," on this record, that such losses and expenses will not, over time, if they have not done so already, amount to the requisite $10,000 for at least some of the individual growers and dealers. That is sufficient to sustain the District Court's jurisdiction. The requirements of § 1331 are therefore met.
30
(4)
31
We turn finally to the appellants' claim that the District Court erred in holding that the North Carolina statute violated the Commerce Clause insofar as it prohibited the display of Washington State grades on closed containers of apples shipped into the State. Appellants do not really contest the District Court's determination that the challenged statute burdened the Washington apple industry by increasing its costs of doing business in the North Carolina market and causing it to lose accounts there. Rather, they maintain that any such burdens on the interstate sale of Washington apples were far outweighed by the local benefits flowing from what they contend was a valid exercise of North Carolina's inherent police powers designed to protect its citizenry from fraud and deception in the marketing of apples.
32
Prior to the statute's enactment, appellants point out, apples from 13 different States were shipped into North Carolina for sale. Seven of those States, including the State of Washington, had their own grading systems which, while differing in their standards, used similar descriptive labels (e. g., fancy, extra fancy, etc.). This multiplicity of inconsistent state grades, as the District Court itself found, posed dangers of deception and confusion not only in the North Carolina market, but in the Nation as a whole. The North Carolina statute, appellants claim, was enacted to eliminate this source of deception and confusion by replacing the numerous state grades with a single uniform standard. Moreover, it is contended that North Carolina sought to accomplish this goal of uniformity in an evenhanded manner as evidenced by the fact that its statute applies to all apples sold in closed containers in the State without regard to their point of origin. Nonetheless, appellants argue that the District Court gave "scant attention" to the obvious benefits flowing from the challenged legislation and to the long line of decisions from this Court holding that the States possess "broad powers" to protect local purchasers from fraud and deception in the marketing of foodstuffs. E. g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Pacific States Box & Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138 (1935); Corn Products Refining Co. v. Eddy, 249 U.S. 427, 39 S.Ct. 325, 63 L.Ed. 689 (1919).
33
As the appellants properly point out, not every exercise of state authority imposing some burden on the free flow of commerce is invalid. E. g., Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366, 371, 96 S.Ct. 923, 928, 47 L.Ed.2d 55 (1976); Freeman v. Hewit, 329 U.S. 249, 252, 67 S.Ct. 274, 276, 91 L.Ed. 265 (1946). Although the Commerce Clause acts as a limitation upon state power even without congressional implementation, e. g., Great Atlantic & Pacific Tea Co., supra, 424 U.S. at 370-371, 96 S.Ct., at 927-928; Freeman v. Hewit, supra, 329 U.S. at 252, 67 S.Ct., at 276; Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1852), our opinions have long recognized that,
34
"in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it." Southern Pacific Co. v. Arizona, ex rel. Sullivan, 325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915 (1945).
35
Moreover, as appellants correctly note, that "residuum" is particularly strong when the State acts to protect its citizenry in matters pertaining to the sale of foodstuffs. Florida Lime & Avocado Growers, Inc., supra, 373 U.S. at 146, 83 S.Ct., at 1219. By the same token, however, a finding that state legislation furthers matters of legitimate local concern, even in the health and consumer protection areas, does not end the inquiry. Such a view, we have noted, "would mean that the Commerce Clause of itself imposes no limitations on state action . . . save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods." Dean Milk Co. v. Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 298, 95 L.Ed. 329 (1951). Rather, when such state legislation comes into conflict with the Commerce Clause's overriding requirement of a national "common market," we are confronted with the task of effecting an accommodation of the competing national and local interests. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970); Great Atlantic & Pacific Tea Co., supra, 424 U.S. at 370-372, 96 S.Ct., at 927-928. We turn to that task.
36
As the District Court correctly found, the challenged statute has the practical effect of not only burdening interstate sales of Washington apples, but also discriminating against them. This discrimination takes various forms. The first, and most obvious, is the statute's consequence of raising the costs of doing business in the North Carolina market for Washington apple growers and dealers, while leaving those of their North Carolina counterparts unaffected. As previously noted, this disparate effect results from the fact that North Carolina apple producers, unlike their Washington competitors, were not forced to alter their marketing practices in order to comply with the statute. They were still free to market their wares under the USDA grade or none at all as they had done prior to the statute's enactment. Obviously, the increased costs imposed by the statute would tend to shield the local apple industry from the competition of Washington apple growers and dealers who are already at a competitive disadvantage because of their great distance from the North Carolina market.
37
Second, the statute has the effect of stripping away from the Washington apple industry the competitive and economic advantages it has earned for itself through its expensive inspection and grading system. The record demonstrates that the Washington apple-grading system has gained nationwide acceptance in the apple trade. Indeed, it contains numerous affidavits from apple brokers and dealers located both inside and outside of North Carolina who state their preference, and that of their customers, for apples graded under the Washington, as opposed to the USDA, system because of the former's greater consistency, its emphasis on color, and its supporting mandatory inspections. Once again, the statute had no similar impact on the North Carolina apple industry and thus operated to its benefit.
38
Third, by prohibiting Washington growers and dealers from marketing apples under their State's grades, the statute has a leveling effect which insidiously operates to the advantage of local apple producers. As noted earlier, the Washington State grades are equal or superior to the USDA grades in all corresponding categories. Hence, with free market forces at work, Washington sellers would normally enjoy a distinct market advantage vis-a-vis local producers in those categories where the Washington grade is superior. However, because of the statute's operation, Washington apples which would otherwise qualify for and be sold under the superior Washington grades will now have to be marketed under their inferior USDA counterparts. Such "downgrading" offers the North Carolina apple industry the very sort of protection against competing out-of-state products that the Commerce Clause was designed to prohibit. At worst, it will have the effect of an embargo against those Washington apples in the superior grades as Washington dealers withhold them from the North Carolina market. At best, it will deprive Washington sellers of the market premium that such apples would otherwise command.
39
Despite the statute's facial neutrality, the Commission suggests that its discriminatory impact on interstate commerce was not an unintended byproduct and there are some indications in the record to that effect. The most glaring is the response of the North Carolina Agriculture Commissioner to the Commission's request for an exemption following the statue's passage in which he indicated that before he could support such an exemption, he would "want to have the sentiment from our apple producers since they were mainly responsible for this legislation being passed . . . ." App. 21 (emphasis added). Moreover, we find it somewhat suspect that North Carolina singled out only closed containers of apples, the very means by which apples are transported in commerce, to effectuate the statute's ostensible consumer protection purpose when apples are not generally sold at retail in their shipping containers. However, we need not ascribe an economic protection motive to the North Carolina Legislature to resolve this case; we conclude that the challenged statute cannot stand insofar as it prohibits the display of Washington State grades even if enacted for the declared purpose of protecting consumers from deception and fraud in the marketplace.
40
When discrimination against commerce of the type we have found is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake. Dean Milk Co. v. Madison, 340 U.S. at 354, 71 S.Ct., at 297. See also Great Atlantic & Pacific Tea Co., 424 U.S., at 373, 96 S.Ct., at 929; Pike v. Bruce Church, Inc., 397 U.S., at 142, 90 S.Ct., at 847; Polar Ice Cream & Creamery Co. v. Andrews, 375 U.S. 361, 375 n.9, 84 S.Ct. 378, 386, 11 L.Ed.2d 389 (1964); Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 524, 55 S.Ct. 497, 500, 79 L.Ed. 1032 (1935). North Carolina has failed to sustain that burden on both scores.
41
The several States unquestionably possess a substantial interest in protecting their citizens from confusion and deception in the marketing of foodstuffs, but the challenged statute does remarkably little to further that laudable goal at least with respect to Washington apples and grades. The statute, as already noted, permits the marketing of closed containers of apples under no grades at all. Such a result can hardly be thought to eliminate the problems of deception and confusion created by the multiplicity of differing state grades; indeed, it magnifies them by depriving purchasers of all information concerning the quality of the contents of closed apple containers. Moreover, although the statute is ostensibly a consumer protection measure, it directs its primary efforts, not at the consuming public at large, but at apple wholesalers and brokers who are the principal purchasers of closed containers of apples. And those individuals are presumably the most knowledgeable individuals in this area. Since the statute does nothing at all to purify the flow of information at the retail level, it does little to protect consumers against the problems it was designed to eliminate. Finally, we note that any potential for confusion and deception created by the Washington grades8 was not of the type that led to the statute's enactment. Since Washington grades are in all cases equal or superior to their USDA counterparts, they could only "deceive" or "confuse" a consumer to his benefit, hardly a harmful result.
42
In addition, it appears that nondiscrimnatory alternatives to the outright ban of Washington State grades are readily available. For example, North Carolina could effectuate its goal by permitting out-of-state growers to utilize state grades only if they also marked their shipments with the applicable USDA label. In that case, the USDA grand would serve as a benchmark against which the consumer could evaluate the quality of the various state grades. If this alternative was for some reason inadequate to eradicate problems caused by state grades inferior to those adopted by the USDA, North Carolina might consider banning those state grades which, unlike Washington's could not be demonstrated to be equal or superior to the corresponding USDA categories. Concededly, even in this latter instance, some potential for "confusion" might persist. However, it is the type of "confusion" that the national interest in the free flow of goods between the States demands be tolerated.9
The judgment of the District Court is
43
Affirmed.
44
Mr. Justice REHNQUIST took no part in the consideration or decision of the case.
1
Section 1331 provides in pertinent part:
"(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs . . . ."
2
The North Carolina regulation, as amended, provides in pertinent part:
"(6) Apple containers must show the applicable U.S. Grade on the principal display panel or marked 'Unclassified,' 'Not Graded,' or 'Grade Not Determined.' State grades shall not be shown." § 3-24.5(6), Rules, Regulations, Definitions and Standards of the North Carolina Department of Agriculture.
3
Under Washington law, the Commission is a corporation and is specifically granted the power to sue and be sued. Wash.Rev.Code § 15.24.070(8) (1974).
4
In this regard, it adopted the ruling of the single District Judge who had previously denied appellants' motion to dismiss the complaint brought on the same grounds. App. 51-58. That judge had found it unnecessary to determine whether jurisdiction was also proper under 28 U.S.C. § 1343 in view of his determination that jurisdiction had been established under § 1331. App. 57 n. 2.
5
As an alternative ground for its holding, the District Court found that the statute would have constituted an undue burden on commerce even if it had been neutral and nondiscriminatory in its impact. Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). 408 F.Supp., at 862 n. 9.
6
During 1974, the Commission spent in excess of $25,000 advertising Washington apples in the North Carolina market. Id., at 859.
7
In addition, apples worth approximately 30 to 40 percent of that amount were transshipped into North Carolina in 1974 after direct shipment to apple brokers and wholesalers located in other States.
8
Indeed, the District Court specifically indicated in its findings of fact that there had been no showing that the Washington State grades had caused any confusion in the North Carolina market. 408 F.Supp., at 859.
9
Our conclusion in this regard necessarily rejects North Carolina's suggestion that the burdens on commerce imposed by the statute are justified on the ground that the standardization required by the statute serves the national interest in achieving uniformity in the grading and labeling of foodstuffs.
| 78
|
432 U.S. 464
97 S.Ct. 2376
53 L.Ed.2d 484
Edward W. MAHER, Commissioner of Social Services of Connecticut, Appellant,v.Susan ROE et al.
No. 75-1440.
Argued Jan. 11, 1977.
Decided June 20, 1977.
Syllabus
Appellees, two indigent women who were unable to obtain a physician's certificate of medical necessity, brought this action attacking the validity of a Connecticut Welfare Department regulation that limits state Medicaid benefits for first trimester abortions to those that are "medically necessary." A three-judge District Court held that the Equal Protection Clause of the Fourteenth Amendment forbids the exclusion of nontherapeutic abortions from a state welfare program that generally subsidizes the medical expenses incident to pregnancy and childbirth. The court found implicit in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, the view that "abortion and childbirth . . . are simply two alternative medical methods of dealing with pregnancy. . . ." Held:
1. The Equal Protection Clause does not require a State participating in the Medicaid program to pay the expenses incident to nontherapeutic abortions for indigent women simply because it has made a policy choice to pay expenses incident to childbirth. Pp. 469-480.
(a) Financial need alone does not identify a suspect class for purposes of equal protection analysis. See San Antonio School District v. Rodriguez, 411 U.S. 1, 29, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16; Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491. Pp. 470-471.
(b) The Connecticut regulation, does not impinge upon the fundamental right of privacy recognized in Roe, supra, that protects a woman from unduly burdensome interference with her freedom to decide whether or not to terminate her pregnancy. That right implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion and to implement that judgment by the allocation of public funds. An indigent woman desiring an abortion is not disadvantaged by Connecticut's decision to fund childbirth; she continues as before to be dependent on private abortion services. Pp. 471-474.
(c) A State is not required to show a compelling interest for its policy choice to favor normal childbirth. Pp. 475-477.
(d) Connecticut's regulation is rationally related to and furthers its "strong and legitimate interest in encouraging normal childbirth," Beal v. Doe, 432 U.S. 438, 446, 97 S.Ct. 2366, 2372, 53 L.Ed.2d 464. The subsidizing of costs incident to childbirth is a rational means of encouraging childbirth. States, moreover, have a wide latitude in choosing among competing demands for limited public funds. Pp. 478-480.
2. Since it is not unreasonable for a State to insist upon a prior showing of medical necessity to insure that its money is being spent only for authorized purposes, the District Court erred in invalidating the requirements of prior written request by the pregnant woman and prior authorization by the Department of Social Services for abortions. Although similar requirements are not imposed for other medical procedures, such procedures do not involve the termination of a potential human life. P. 480.
D.C., 408 F.Supp. 660, reversed and remanded.
Edmund C. Walsh, Hartford, Conn., for appellant.
Lucy V. Katz, Stamford, Conn., for appellees.
Mr. Justice POWELL delivered the opinion of the Court.
1
In Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464, we hold today that Title XIX of the Social Security Act does not require the funding of nontherapeutic abortions as a condition of participation in the joint federal-state medicaid program established by that statute. In this case, as a result of our decision in Beal, we must decide whether the Constitution requires a participating State to pay for nontherapeutic abortions when it pays for childbirth.
2
* A regulation of the Connecticut Welfare Department limits state Medicaid benefits for first trimester abortions1 to those that are "medically necessary," a term defined to include psychiatric necessity. Connecticut Welfare Department, Public Assistance Program Manual, Vol. 3, c. III, § 275 (1975).2 Connecticut enforces this limitation through a system of prior authorization from its Department of Social Services. In order to obtain authorization for a first trimester abortion, the hospital or clinic where the abortion is to be performed must submit, among other things, a certificate from the patient's attending physician stating that the abortion is medically necessary.
3
This attack on the validity of the Connecticut regulation was brought against appellant Maher, the Commissioner of Social Services, by appellees Poe and Roe, two indigent women who were unable to obtain a physician's certificate of medical necessity.3 In a complaint filed in the United States District Court for the District of Connecticut, they challenged the regulation both as inconsistent with the requirements of Title XIX of the Social Security Act, as added 79 Stat. 343, as amended, 42 U.S.C. § 1396 et seq. (1970 ed. and Supp. V), and as violative of their constitutional rights, including the Fourteenth Amendment's guarantees of due process and equal protection. Connecticut originally defended its regulation on the theory that Title XIX of the Social Security Act prohibited the funding of abortions that were not medically necessary. After certifying a class of women unable to obtain Medicaid assistance for abortions because of the regulation, the District Court held that the Social Security Act not only allowed state funding of nontherapeutic abortions but also required it. Roe v. Norton, 380 F.Supp. 726 (1974). On appeal, the Court of Appeals for the Second Circuit read the Social Security Act to allow, but not to require, state funding of such abortions. 522 F.2d 928 (1975). Upon remand for consideration of the constitutional issues raised in the complaint, a three-judge District Court was convened. That court invalidated the Connecticut regulation. 408 F.Supp. 660 (1975).
4
Although it found no independent constitutional right to a state-financed abortion, the District Court held that the Equal Protection Clause forbids the exclusion of nontherapeutic abortions from a state welfare program that generally subsidizes the medical expenses incident to pregnancy and childbirth. The court found implicit in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the view that "abortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy . . .." 408 F.Supp., at 663 n. 3. Relying also on Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), the court held that the Connecticut program "weights the choice of the pregnant mother against choosing to exercise her constitutionally protected right" to a nontherapeutic abortion and "thus infringes upon a fundamental interest." 408 F.Supp., at 663-664. The court found no state interest to justify this infringement. The State's fiscal interest was held to be "wholly chimerical because abortion is the least expensive medical response to a pregnancy." Id., at 664 (footnote omitted). And any moral objection to abortion was deemed constitutionally irrelevant:
5
"The state may not justify its refusal to pay for one type of expense arising from pregnancy on the basis that it morally opposes such an expenditure of money. To sanction such a justification would be to permit discrimination against those seeking to exercise a constitutional right on the basis that the state simply does not approve of the exercise of that right." Ibid.
6
The District Court enjoined the State from requiring the certificate of medical necessity for Medicaid-funded abortions.4 The court also struck down the related requirements of prior written request by the pregnant woman and prior authorization by the Department of Social Services, holding that the State could not impose any requirements on Medicaid payments for abortions that are not "equally applicable to medicaid payments for childbirth, if such conditions or requirements tend to discourage a woman from choosing an abortion or to delay the occurrence of an abortion that she has asked her physician to perform." Id., at 665. We noted probable jurisdiction to consider the constitutionality of the Connecticut regulation. 428 U.S. 908, 96 S.Ct. 3219, 49 L.Ed.2d 1216 (1976).
II
7
(1) The Constitution imposes no obligation on the States to pay the pregnancy-related medical expenses of indigent women, or indeed to pay any of the medical expenses of indigents.5 But when a State decides to alleviate some of the hardships of poverty by providing medical care, the manner in which it dispenses benefits is subject to constitutional limitations. Appellees' claim is that Connecticut must accord equal treatment to both abortion and childbirth, and may not evidence a policy preference by funding only the medical expenses incident to childbirth. This challenge to the classifications established by the Connecticut regulation presents a question arising under the Equal Protection Clause of the Fourteenth Amendment. The basic framework of analysis of such a claim is well settled:
8
"We must decide, first, whether (state legislation) operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. . . . If not, the (legislative) scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination . . .." San Antonio School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973).
9
Accord, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 314, 96 S.Ct. 2562, 2566, 2567, 49 L.Ed.2d 520 (1976). Applying this analysis here, we think the District Court erred in holding that the Connecticut regulation violated the Equal Protection Clause of the Fourteenth Amendment.
A.
10
(2) This case involves no discrimination against a suspect class. An indigent woman desiring an abortion does not come within the limited category of disadvantaged classes so recognized by our cases. Nor does the fact that the impact of the regulation falls upon those who cannot pay lead to a different conclusion. In a sense, every denial of welfare to an indigent creates a wealth classification as compared to nonindigents who are able to pay for the desired goods or services. But this Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis. See Rodriguez, supra, 411 U.S. at 29, 93 S.Ct., at 1294; Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).6 Accordingly, the central question in this case is whether the regulation "impinges upon a fundamental right explicitly or implicitly protected by the Constitution." The District Court read our decisions in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and the subsequent cases applying it, as establishing a fundamental right to abortion and therefore concluded that nothing less than a compelling state interest would justify Connecticut's different treatment of abortion and childbirth. We think the District Court misconceived the nature and scope of the fundamental right recognized in Roe.
B
11
(3) At issue in Roe was the constitutionality of a Texas law making it a crime to procure or attempt to procure an abortion, except on medical advice for the purpose of saving the life of the mother. Drawing on a group of disparate cases restricting governmental intrusion, physical coercion, and criminal prohibition of certain activities, we concluded that the Fourteenth Amendment's concept of personal liberty affords constitutional protection against state interference with certain aspects of an individual's personal "privacy," including a woman's decision to terminate her pregnancy.7 Id., at 153, 93 S.Ct., at 727.
12
The Texas statute imposed severe criminal sanctions on the physicians and other medical personnel who performed abortions, thus drastically limiting the availability and safety of the desired service. As Mr. Justice Stewart observed, "it is difficult to imagine a more complete abridgment of a constitutional freedom . . .." Id., at 170, 93 S.Ct., at 735 (concurring opinion). We held that only a compelling state interest would justify such a sweeping restriction on a constitutionally protected interest, and we found no such state interest during the first trimester. Even when judged against this demanding standard, however, the State's dual interest in the health of the pregnant woman and the potential life of the fetus were deemed sufficient to justify substantial regulation of abortions in the second and third trimesters. "These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes 'compelling.' " Id., at 162-163, 93 S.Ct., at 731. In the second trimester, the State's interest in the health of the pregnant woman justifies state regulation reasonably related to that concern. Id., at 163, 93 S.Ct., at 731-732. At viability, usually in the third trimester, the State's interest in the potential life of the fetus justifies prohibition with criminal penalties, except where the life or health of the mother is threatened. Id., at 163-164, 93 S.Ct., at 732.
13
The Texas law in Roe was a stark example of impermissible interference with the pregnant woman's decision to terminate her pregnancy. In subsequent cases, we have invalidated other types of restrictions, different in form but similar in effect, on the woman's freedom of choice. Thus, in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 70-71, n. 11, 96 S.Ct. 2831, 2841-2842, 49 L.Ed.2d 788 (1976), we held that Missouri's requirement of spousal consent was unconstitutional because it "granted (the husband) the right to prevent unilaterally, and for whatever reason, the effectuation of his wife's and her physician's decision to terminate her pregnancy." Missouri had interposed an "absolute obstacle to a woman's decision that Roe held to be constitutionally protected from such interference." (Emphasis added.) Although a state-created obstacle need not be absolute to be impermissible, see Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), we have held that a requirement for a lawful abortion "is not unconstitutional unless it unduly burdens the right to seek an abortion." Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976). We recognized in Bellotti that "not all distinction between abortion and other procedures is forbidden" and that "(t)he constitutionality of such distinction will depend upon its degree and the justification for it." Id., at 149-150, 96 S.Ct., at 2867. We therefore declined to rule on the constitutionality of a Massachusetts statute regulating a minor's access to an abortion until the state courts had had an opportunity to determine whether the statute authorized a parental veto over the minor's decision or the less burdensome requirement of parental consultation.
14
These cases recognize a constitutionally protected interest "in making certain kinds of important decisions" free from governmental compulsion. Whalen v. Roe, 429 U.S. 589, 599-600, and nn. 24 and 26, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). As Whalen makes clear, the right in Roe v. Wade can be understood only by considering both the woman's interest and the nature of the State's interference with it. Roe did not declare an unqualified "constitutional right to an abortion," as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.
15
The Connecticut regulation before us is different in kind from the laws invalidated in our previous abortion decisions. The Connecticut regulation places no obstacles absolute or otherwise in the pregnant woman's path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut's decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult and in some cases, perhaps, impossible for some women to have abortions is neither created nor in any way affected by the Connecticut regulation. We conclude that the Connecticut regulation does not impinge upon the fundamental right recognized in Roe.8
C
16
(4) Our conclusion signals no retreat from Roe or the cases applying it. There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.9 Constitutional concerns are greatest when the State attempts to impose its will by force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader.
17
This distinction is implicit in two cases cited in Roe in support of the pregnant woman's right under the Fourteenth Amendment. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), involved a Nebraska law making it criminal to teach foreign languages to children who had not passed the eighth grade. Id., at 396-397, 43 S.Ct., at 626. Nebraska's imposition of a criminal sanction on the providers of desired services makes Meyer closely analogous to Roe. In sustaining the constitutional challenge brought by a teacher convicted under the law, the Court held that the teacher's "right thus to teach and the right of parents to engage him so to instruct their children" were "within the liberty of the Amendment." 262 U.S., at 400, 43 S.Ct., at 627. In Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), the Court relied on Meyer to invalidate an Oregon criminal law requiring the parent or guardian of a child to send him to a public school, thus precluding the choice of a private school. Reasoning that the Fourteenth Amendment's concept of liberty "excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only," the Court held that the law "unreasonably interfere(d) with the liberty of parents and guardians to direct the upbringing and education of children under their control." 268 U.S., at 534-535, 45 S.Ct., at 573.
18
(5) Both cases invalidated substantial restrictions on constitutionally protected liberty interests: in Meyer, the parent's right to have his child taught a particular foreign language; in Pierce, the parent's right to choose private rather than public school education. But neither case denied to a State the policy choice of encouraging the preferred course of action. Indeed, in Meyer, the Court was careful to state that the power of the State "to prescribe a curriculum" that included English and excluded German in its free public schools "is not questioned." 262 U.S., at 402, 43 S.Ct., at 628. Similarly, Pierce casts no shadow over a State's power to favor public education by funding it a policy choice pursued in some States for more than a century. See Brown v. Board of Education, 347 U.S. 483, 489 n. 4, 74 S.Ct. 686, 689, 98 L.Ed. 873 (1954). Indeed, in Norwood v. Harrison, 413 U.S. 455, 462, 93 S.Ct. 2804, 2809, 37 L.Ed.2d 723 (1973), we explicitly rejected the argument that Pierce established a "right of private or parochial schools to share with public schools in state largesse," noting that "(i)t is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid." Yet, were we to accept appellees' argument, an indigent parent could challenge the state policy of favoring public rather than private schools, or of preferring instruction in English rather than German, on grounds identical in principle to those advanced here. We think it abundantly clear that a State is not required to show a compelling interest for its policy choice to favor normal childbirth any more than a State must so justify its election to fund public but not private education.10
D
19
The question remains whether Connecticut's regulation can be sustained under the less demanding test of rationality that applies in the absence of a suspect classification or the impingement of a fundamental right. This test requires that the distinction drawn between childbirth and nontherapeutic abortion by the regulation be "rationally related" to a "constitutionally permissible" purpose. Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972); Massachusetts Board of Retirement v. Murgia, 427 U.S., at 314, 96 S.Ct., at 2567. We hold that the Connecticut funding scheme satisfies this standard.
20
Roe itself explicitly acknowledged the State's strong interest in protecting the potential life of the fetus. That interest exists throughout the pregnancy, "grow(ing) in substantiality as the woman approaches term." 410 U.S., at 162-163, 93 S.Ct., at 731. Because the pregnant woman carries a potential human being she "cannot be isolated in her privacy. . . . (Her) privacy is no longer sole and any right of privacy she possesses must be measured accordingly." Id., at 159, 93 S.Ct., at 730. The State unquestionably has a "strong and legitimate interest in encouraging normal childbirth," Beal v. Doe, 432 U.S. 438, at 446, 97 S.Ct. 2366, at 2372, 53 L.Ed.2d 464, an interest honored over the centuries.11 Nor can there be any question that the Connecticut regulation rationally furthers that interest. The medical costs associated with childbirth are substantial, and have increased significantly in recent years. As recognized by the District Court in this case, such costs are significantly greater than those normally associated with elective abortions during the first trimester. The subsidizing of costs incident to childbirth is a rational means of encouraging childbirth.
21
(6) We certainly are not unsympathetic to the plight of an indigent woman who desires an abortion, but "the Constitution does not provide judicial remedies for every social and economic ill," Lindsey v. Normet, supra, 405 U.S., at 74, 92 S.Ct., at 874. Our cases uniformly have accorded the States a wider latitude in choosing among competing demands for limited public funds.12 In Dandridge v. Williams, 397 U.S., at 485, 90 S.Ct., at 1162, despite recognition that laws and regulations allocating welfare funds involve "the most basic economic needs of impoverished human beings," we held that classifications survive equal protection challenge when a "reasonable basis" for the classification is shown. As the preceding discussion makes clear, the state interest in encouraging normal childbirth exceeds this minimal level.
22
The decision whether to expend state funds for nontherapeutic abortion is fraught with judgments of policy and value over which opinions are sharply divided. Our conclusion that the Connecticut regulation is constitutional is not based on a weighing of its wisdom or social desirability, for this Court does not strike down state laws "because they may be unwise, improvident, or out of harmony with a particular school of thought." Williamson v. Lee Optical Co., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955), quoted in Dandridge v. Williams, supra, 397 U.S. at 484, 90 S.Ct., at 1161. Indeed, when an issue involves policy choices as sensitive as those implicated by public funding of nontherapeutic abortions, the appropriate forum for their resolution in a democracy is the legislature. We should not forget that "legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." Missouri, K. & T. R. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971 (1904) (Holmes, J.).13
23
In conclusion, we emphasize that our decision today does not proscribe government funding of nontherapeutic abortions. It is open to Congress to require provision of Medicaid benefits for such abortions as a condition of state participation in the Medicaid program. Also, under Title XIX as construed in Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464, Connecticut is free through normal democratic processes to decide that such benefits should be provided. We hold only that the Constitution does not require a judicially imposed resolution of these difficult issues.
III
24
(7) The District Court also invalidated Connecticut's requirements of prior written request by the pregnant woman and prior authorization by the Department of Social Services. Our analysis above rejects the basic premise that prompted invalidation of these procedural requirements. It is not unreasonable for a State to insist upon a prior showing of medical necessity to insure that its money is being spent only for authorized purposes. The simple answer to the argument that similar requirements are not imposed for other medical procedures is that such procedures do not involve the termination of a potential human life. In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), we held that the woman's written consent to an abortion was not an impermissible burden under Roe. We think that decision is controlling on the similar issue here.
25
The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
26
It is so ordered.
27
Mr. Chief Justice BURGER, concurring.
28
I join the Court's opinion. Like the Court, I do not read any decision of this Court as requiring a State to finance a nontherapeutic abortion. The Court's holdings in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), simply require that a State not create an absolute barrier to a woman's decision to have an abortion. These precedents do not suggest that the State is constitutionally required to assist her in procuring it.
29
From time to time, every state legislature determines that, as a matter of sound public policy, the government ought to provide certain health and social services to its citizens. Encouragement of childbirth and child care is not a novel undertaking in this regard. Various governments, both in this country and in others, have made such a determination for centuries. In recent times, they have similarly provided educational services. The decision to provide any one of these services or not to provide them is not required by the Federal Constitution. Nor does the providing of a particular service require, as a matter of federal constitutional law, the provision of another.
30
Here, the State of Connecticut has determined that it will finance certain childbirth expenses. That legislative determination places no state-created barrier to a woman's choice to procure an abortion, and it does not require the State to provide it. Accordingly, I concur in the judgment.
31
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice BLACKMUN join, dissenting.
The District Court held:
32
"When Connecticut refuses to fund elective abortions while funding therapeutic abortions and prenatal and postnatal care, it weights the choice of the pregnant mother against choosing to exercise her constitutionally protected right to an elective abortion. . . . Her choice is affected not simply by the absence of payment for the abortion, but by the availability of public funds for childbirth if she chooses not to have the abortion. When the state thus infringes upon a fundamental interest, it must assert a compelling state interest." Roe v. Norton, 408 F.Supp. 660, 663-664 (1975).
33
This Court reverses on the ground that "the District Court misconceived the nature and scope of the fundamental right recognized in Roe (v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973))," ante, at 471, and therefore that Connecticut was not required to meet the "compelling interest" test to justify its discrimination against elective abortion but only "the less demanding test of rationality that applies in the absence of . . . the impingement of a fundamental right," ante, at 477, 478. This holding, the Court insists, "places no obstacles absolute or otherwise in the pregnant woman's path to an abortion"; she is still at liberty to finance the abortion from "private sources." Ante, at 474. True, "the State may (by funding childbirth) have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there." Ibid. True, also, indigency "may make it difficult and in some cases, perhaps impossible for some women to have abortions," but that regrettable consequence "is neither created nor in any way affected by the Connecticut regulation." Ibid.
34
But a distressing insensitivity to the plight of impoverished pregnant women is inherent in the Court's analysis. The stark realty for too many, not just "some," indigent pregnant women is that indigency makes access to competent licensed physicians not merely "difficult" but "impossible." As a practical matter, many indigent women will feel they have no choice but to carry their pregnancies to term because the State will pay for the associated medical services, even though they would have chosen to have abortions if the State had also provided funds for that procedure, or indeed if the State had provided funds for neither procedure. This disparity in funding by the State clearly operates to coerce indigent pregnant women to bear children they would not otherwise choose to have, and just as clearly, this coercion can only operate upon the poor, who are uniquely the victims of this form of financial pressure. Mr. Justice Frankfurter's words are apt:
35
"To sanction such a ruthless consequence, inevitably resulting from a money hurdle erected by the State, would justify a latter-day Anatole France to add one more item to his ironic comments on the 'majestic equality' of the law. 'The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread' . . . ." Griffin v. Illinois, 351 U.S. 12, 23, 76 S.Ct. 585, 593, 100 L.Ed. 891 (1956) (concurring opinion).
36
None can take seriously the Court's assurance that its "conclusion signals no retreat from Roe (v. Wade ) or the cases applying it," ante, at 475. That statement must occasion great surprise among the Courts of Appeals and District Courts that, relying upon Roe v. Wade and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), have held that States are constitutionally required to fund elective abortions if they fund pregnancies carried to term. See Doe v. Rose, 499 F.2d 1112 (CA10 1974); Wulff v. Singleton, 508 F.2d 1211 (CA8 1974), rev'd and remanded on other grounds, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Doe v. Westby, 383 F.Supp. 1143 (WDSD 1974), vacated and remanded (in light of Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974)), 420 U.S. 968, 95 S.Ct. 1385, 43 L.Ed.2d 648, on remand, 402 F.Supp. 140 (1975); Doe v. Wohlgemuth, 376 F.Supp. 173 (WD Pa. 1974), aff'd on statutory grounds sub nom. Doe v. Beal, 523 F.2d 611 (CA3 1975), rev'd and remanded 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977); Doe v. Rampton, 366 F.Supp. 189 (D.C. Utah 1973); Klein v. Nassau County Medical Center, 347 F.Supp. 496 (EDNY 1972), vacated and remanded (in light of Roe v. Wade and Doe v. Bolton, 412 U.S. 925, 93 S.Ct. 2747, 37 L.Ed.2d 152 (1973)), on remand, 409 F.Supp. 731 (1976). Indeed, it cannot be gainsaid that today's decision seriously erodes the principles that Roe and Doe announced to guide the determination of what constitutes an unconstitutional infringement of the fundamental right of pregnant women to be free to decide whether to have an abortion.
37
The Court's premise is that only an equal protection claim is presented here. Claims of interference with enjoyment of fundamental rights have, however, occupied a rather protean position in our constitutional jurisprudence. Whether or not the Court's analysis may reasonably proceed under the Equal Protection Clause, the Court plainly errs in ignoring, as it does, the unanswerable argument of appellees, and the holding of the District Court, that the regulation unconstitutionally impinges upon their claim of privacy derived from the Due Process Clause.
38
Roe v. Wade and cases following it hold that an area of privacy invulnerable to the State's intrusion surrounds the decision of a pregnant woman whether or not to carry her pregnancy to term. The Connecticut scheme clearly infringes upon that area of privacy by bringing financial pressures on indigent women that force them to bear children they would not otherwise have. That is an obvious impairment of the fundamental right established by Roe v. Wade. Yet the Court concludes that "the Connecticut regulation does not impinge upon (that) fundamental right." Ante, at 474. This conclusion is based on a perceived distinction, on the one hand, between the imposition of criminal penalties for the procurement of an abortion present in Roe v. Wade and Doe v. Bolton and the absolute prohibition present in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), and, on the other, the assertedly lesser inhibition imposed by the Connecticut scheme. Ante, at 472-474.
39
The last time our Brother POWELL espoused the concept in an abortion case that "(t)here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy," ante, at 475, the Court refused to adopt it. Singleton v. Wulff, 428 U.S. 106, 122, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). This was made explicit in Part II of our Brother Blackmun's opinion for four of us and is implicit in our Brother Stevens' essential agreement with the analysis of Part II-B. Id., at 121-122, 96 S.Ct. at 2877 (concurring in part). Part II-B stated:
40
"Mr. Justice Powell would so limit Doe and the other cases cited, explaining them as cases in which the State 'directly interfered with the abortion decision' and 'directly interdicted the normal functioning of the physician-patient relationship by criminalizing certain procedures,' (428 U.S.,) at 128, 96 S.Ct., at 2880-2881. There is no support in the language of the cited cases for this distinction . . . . Moreover, a 'direct interference' or 'interdiction' test does not appear to be supported by precedent. . . . For a doctor who cannot afford to work for nothing, and a woman who cannot afford to pay him, the State's refusal to fund an abortion is as effective an 'interdiction' of it as would ever be necessary. Furthermore, since the right . . . is not simply the right to have an abortion, but the right to have abortions nondiscriminatorily funded, the denial of such funding is as complete an 'interdiction' of the exercise of the right as could ever exist." Id., at 118 n. 7, 96 S.Ct., at 2876.
41
We have also rejected this approach in other abortion cases. Doe v. Bolton, the companion to Roe v. Wade, in addition to striking down the Georgia criminal prohibition against elective abortions, struck down the procedural requirements of certification of hospitals, of approval by a hospital committee, and of concurrence in the abortion decision by two doctors other than the woman's own doctor. None of these requirements operated as an absolute bar to elective abortions in the manner of the criminal prohibitions present in the other aspect of the case or in Roe, but this was not sufficient to save them from unconstitutionality. In Planned Parenthood, supra, we struck down a requirement for spousal consent to an elective abortion which the Court characterizes today simply as an "absolute obstacle" to a woman's obtaining an abortion. Ante, at 473. But the obstacle was "absolute" only in the limited sense that a woman who was unable to persuade her spouse to agree to an elective abortion was prevented from obtaining one. Any woman whose husband agreed, or could be persuaded to agree, was free to obtain an abortion, and the State never imposed directly any prohibition of its own. This requirement was qualitatively different from the criminal statutes that the Court today says are comparable, but we nevertheless found it unconstitutional.
42
Most recently, also in a privacy case, the Court squarely reaffirmed that the right of privacy was fundamental, and that an infringement upon that right must be justified by a compelling state interest. Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). That case struck down in its entirety a New York law forbidding the sale of contraceptives to minors under 16 years old, limiting persons who could sell contraceptives to pharmacists, and forbidding advertisement and display of contraceptives. There was no New York law forbidding use of contraceptives by anyone, including minors under 16, and therefore no "absolute" prohibition against the exercise of the fundamental right. Nevertheless the statute was declared unconstitutional as a burden on the right to privacy. In words that apply fully to Connecticut's statute, and that could hardly be more explicit, Carey stated: " 'Compelling' is of course the key word; where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests." Id., at 686, 97 S.Ct., at 2017. Carey relied specifically upon Roe, Doe, and Planned Parenthood, and interpreted them in a way flatly inconsistent with the Court's interpretation today: "The significance of these cases is that they establish that the same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely." 431 U.S., at 688, 97 S.Ct., at 2018.
43
Finally, cases involving other fundamental rights also make clear that the Court's concept of what constitutes an impermissible infringement upon the fundamental right of a pregnant women to choose to have an abortion makes new law. We have repeatedly found that infringements of fundamental rights are not limited to outright denials of those rights. First Amendment decisions have consistently held in a wide variety of contexts that the compelling-state-interest test is applicable not only to outright denials but also to restraints that make exercise of those rights more difficult. See, e. g., Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (free exercise of religion); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (freedom of expression and association), Linmark Associates v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (freedom of expression). The compelling-state-interest test has been applied in voting cases, even where only relatively small infringements upon voting power, such as dilution of voting strength caused by malapportionment, have been involved. See, e. g., Reynolds v. Sims, 377 U.S. 533, 562, 566, 84 S.Ct. 1362, 1382, 1384, 12 L.Ed.2d 506 (1964); Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975); Connor v. Finch, 431 U.S 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977). Similarly, cases involving the right to travel have consistently held that statutes penalizing the fundamental right to travel must pass muster under the compelling-state-interest test, irrespective of whether the statutes actually deter travel. Memorial Hospital v. Maricopa County, 415 U.S. 250, 257-258, 94 S.Ct. 1076, 1081-1082, 39 L.Ed.2d 306 (1974); Dunn v. Blumstein, 405 U.S. 330, 339-341, 92 S.Ct. 995, 1001-1002, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). And indigents asserting a fundamental right of access to the courts have been excused payment of entry costs without being required first to show that their indigency was an absolute bar to access. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).
44
Until today, I had not thought the nature of the fundamental right established in Roe was open to question, let alone susceptible of the interpretation advanced by the Court. The fact that the Connecticut scheme may not operate as an absolute bar preventing all indigent women from having abortions is not critical. What is critical is that the State has inhibited their fundamental right to make that choice free from state interference.
45
Nor does the manner in which Connecticut has burdened the right freely to choose to have an abortion save its Medicaid program. The Connecticut scheme cannot be distinguished from other grants and withholdings of financial benefits that we have held unconstitutionally burdened a fundamental right. Sherbert v. Verner, supra, struck down a South Carolina statute that denied unemployment compensation to a woman who for religious reasons could not work on Saturday, but that would have provided such compensation if her unemployment had stemmed from a number of other nonreligious causes. Even though there was no proof of indigency in that case, Sherbert held that "the pressure upon her to forgo (her religious) practice (was) unmistakable," 374 U.S., at 404, 83 S.Ct., at 1799, and therefore held that the effect was the same as a fine imposed for Saturday worship. Here, though the burden is upon the right to privacy derived from the Due Process Clause and not upon freedom of religion under the Free Exercise Clause of the First Amendment, the governing principle is the same, for Connecticut grants and withholds financial benefits in a manner that discourages significantly the exercise of a fundamental constitutional right. Indeed, the case for application of the principle actually is stronger than in Verner since appellees are all indigents and therefore even more vulnerable to the financial pressures imposed by the Connecticut regulation.
46
Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976), held, and the Court today agrees, ante, at 473, that a state requirement is unconstitutional if it "unduly burdens the right to seek an abortion." Connecticut has "unduly" burdened the fundamental right of pregnant women to be free to choose to have an abortion because the State has advanced no compelling state interest to justify its interference in that choice.
47
Although appellant does not argue it as justification, the Court concludes that the State's interest "in protecting the potential life of the fetus" suffices, ante, at 478.* Since only the first trimester of pregnancy is involved in this case, that justification is totally foreclosed if the Court is not overruling the holding of Roe v. Wade that "(w)ith respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability," occurring at about the end of the second trimester. 410 U.S., at 163, 93 S.Ct., at 732. The appellant also argues a further justification not relied upon by the Court, namely, that the State needs "to control the amount of its limited public funds which will be allocated to its public welfare budget." Brief for Appellant 22. The District Court correctly held, however, that the asserted interest was "wholly chimerical" because the "state's assertion that it saves money when it declines to pay the cost of a welfare mother's abortion is simply contrary to undisputed facts." 408 F.Supp., at 664.
48
Finally, the reasons that render the Connecticut regulation unconstitutional also render invalid, in my view, the requirement of a prior written certification by the woman's attending physician that the abortion is "medically necessary," and the requirement that the hospital submit a Request for Authorization of Professional Services including a "statement indicating the medical need for the abortion." Brief for Appellees 2-3. For the same reasons, I would also strike down the requirement for prior authorization of payment by the Connecticut Department of Social Services.
1
The procedures governing abortions beyond the first trimester are not challenged here.
2
Section 275 provides in relevant part:
"The Department makes payment for abortion services under the Medical Assistance (Title XIX) Program when the following conditions are met:
"1. In the opinion of the attending physician the abortion is medically necessary. The term 'Medically Necessary' includes psychiatric necessity.
"2. The abortion is to be performed in an accredited hospital or licensed clinic when the patient is in the first trimester of pregnancy. . . .
"3. The written request for the abortion is submitted by the patient, and in the case of a minor, from the parent or guardian.
"4. Prior authorization for the abortion is secured from the Chief of Medical Services, Division of Health Services, Department of Social Services."
See n. 4, infra.
3
At the time this action was filed, Mary Poe, a 16-year-old high school junior, had already obtained an abortion at a Connecticut hospital. Apparently because of Poe's inability to obtain a certificate of medical necessity, the hospital was denied reimbursement by the Department of Social Services. As a result, Poe was being pressed to pay the hospital bill of $244. Susan Roe, an unwed mother of three children, was unable to obtain an abortion because of her physician's refusal to certify that the procedure was medically necessary. By consent, a temporary restraining order was entered by the District Court enjoining the Connecticut officials from refusing to pay for Roe's abortion. After the remand from the Court of Appeals, the District Court issued temporary restraining orders covering three additional women. Roe v. Norton, 408 F.Supp. 660, 663 (1975).
4
The District Court's judgment and order, entered on January 16, 1976, were not stayed. On January 26, 1976, the Department of Social Services revised § 275 to allow reimbursement for nontherapeutic abortions without prior authorization or consent. The fact that this revision was made retroactive to January 16, 1976, suggests that the revision was made only for the purpose of interim compliance with the District Court's judgment and order, which were entered the same date. No suggestion of mootness has been made by any of the parties, and this appeal was taken and submitted on the theory that Connecticut desires to reinstate the invalidated regulation. Under these circumstances, the subsequent revision of the regulation does not render the case moot. In any event, there would remain the denial of reimbursement to Mary Poe, and similarly situated members of the class, under the prerevision regulation. See 380 F.Supp., at 730 n. 3. The State has asserted no Eleventh Amendment defense to this relief sought by Poe and those whom she represents.
5
Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), cited by appellees, is not to the contrary. There the Court invalidated under the Due Process Clause "certain state procedures for the commencement of litigation, including requirements for payment of court fees and costs for service of process," restricting the ability of indigent persons to bring an action for divorce. Id., at 372, 91 S.Ct., at 783. The Court held:
"(G)iven the basic position of the marriage relationship in this society's hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship, due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages." Id., at 374, 91 S.Ct., at 784.
Because Connecticut has made no attempt to monopolize the means for terminating pregnancies through abortion the present case is easily distinguished from Boddie. See also United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973).
6
In cases such as Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the Court held that the Equal Protection Clause requires States that allow appellate review of criminal convictions to provide indigent defendants with trial transcripts and appellate counsel. These cases are grounded in the criminal justice system, a governmental monopoly in which participation is compelled. Cf. n. 5, supra. Our subsequent decisions have made it clear that the principles underlying Griffin and Douglas do not extend to legislative classifications generally.
7
A woman has at least an equal right to choose to carry her fetus to term as to choose to abort it. Indeed, the right of procreation without state interference has long been recognized as "one of the basic civil rights of man . . . fundamental to the very existence and survival of the race." Skinner v. Oklahoma, ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942).
8
Appellees rely on Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974). In those cases durational residence requirements for the receipt of public benefits were found to be unconstitutional because they "penalized" the exercise of the constitutional right to travel interstate.
Appellees' reliance on the penalty analysis of Shapiro and Maricopa County is misplaced. In our view there is only a semantic difference between appellees' assertion that the Connecticut law unduly interferes with a woman's right to terminate her pregnancy and their assertion that it penalizes the exercise of that right. Penalties are most familiar to the criminal law, where criminal sanctions are imposed as a consequence of proscribed conduct. Shapiro and Maricopa County recognized that denial of welfare to one who had recently exercised the right to travel across state lines was sufficiently analogous to a criminal fine to justify strict judicial scrutiny.
If Connecticut denied general welfare benefits to all women who had obtained abortions and who were otherwise entitled to the benefits, we would have a close analogy to the facts in Shapiro, and strict scrutiny might be appropriate under either the penalty analysis or the analysis we have applied in our previous abortion decisions. But the claim here is that the State "penalizes" the woman's decision to have an abortion by refusing to pay for it. Shapiro and Maricopa County did not hold that States would penalize the right to travel interstate by refusing to pay the bus fares of the indigent travelers. We find no support in the right-to-travel cases for the view that Connecticut must show a compelling interest for its decision not to fund elective abortions.
Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), similarly is inapplicable here. In addition, that case was decided in the significantly different context of a constitutionally imposed "governmental obligation of neutrality" originating in the Establishment and Freedom of Religion Clauses of the First Amendment. Id., at 409, 83 S.Ct., at 1797.
9
In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), we drew this distinction in sustaining the public financing of the Federal Election Campaign Act of 1971. The Act provided public funds to some candidates but not to others. We rejected an asserted analogy to cases such as American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974), which involved restrictions on access to the electoral process:
"These cases, however, dealt primarily with state laws requiring a candidate to satisfy certain requirements in order to have his name appear on the ballot. These were, of course, direct burdens not only on the candidate's ability to run for office but also on the voter's ability to voice preferences regarding representative government and contemporary issues. In contrast, the denial of public financing to some Presidential candidates is not restrictive of voters' rights and less restrictive of candidates'. Subtitle H does not prevent any candidate from getting on the ballot or any voter from casting a vote for the candidate of his choice; the inability, if any, of minority party candidates to wage effective campaigns will derive not from lack of public funding but from their inability to raise private contributions. Any disadvantage suffered by operation of the eligibility formulae under Subtitle H is thus limited to the claimed denial of the enhancement of opportunity to communicate with the electorate that the formulae afford eligible candidates." 424 U.S., at 94-95, 96 S.Ct., at 670-671 (emphasis added; footnote omitted).
10
In his dissenting opinion, Mr. Justice Brennan rejects the distinction between direct state interference with a protected activity and state encouragement of an alternative activity and argues that our previous abortion decisions are inconsistent with today's decision. But as stated above, all of those decisions involved laws that placed substantial state-created obstacles in the pregnant woman's path to an abortion. Our recent decision in Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) differs only in that it involved state-created restrictions on access to contraceptives, rather than abortions. Mr. Justice Brennan simply asserts that the Connecticut regulation "is an obvious impairment of the fundamental right established by Roe v. Wade." Post, at 484-485. The only suggested source for this purportedly "obvious" conclusion is a quotation from Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). Yet, as Mr. Justice Blackmun was careful to note at the beginning of his opinion in Singleton, that case presented "issues (of standing) not going to the merits of this dispute." Id., at 108, 96 S.Ct., at 2871. Significantly, Mr. Justice Brennan makes no effort to distinguish or explain the much more analogous authority of Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973).
11
In addition to the direct interest in protecting the fetus, a State may have legitimate demographic concerns about its rate of population growth. Such concerns are basic to the future of the State and in some circumstances could constitute a substantial reason for departure from a position of neutrality between abortion and childbirth.
12
See generally Wilkinson, The Supreme Court, the Equal Protection Clause, and the Three Faces of Constitutional Equality, 61 Va.L.Rev. 945, 998-1017 (1975).
13
Much of the rhetoric of the three dissenting opinions would be equally applicable if Connecticut had elected not to fund either abortions or childbirth. Yet none of the dissents goes so far as to argue that the Constitution requires such assistance for all indigent pregnant women.
*
The Court also suggests, ante, at 478 n. 11, that a "State may have legitimate demographic concerns about its rate of population growth" which might justify a choice to favor live births over abortions. While it is conceivable that under some circumstances this might be an appropriate factor to be considered as part of a State's "compelling" interest, no one contends that this is the case here, or indeed that Connecticut has any demographic concerns at all about the rate of its population growth.
| 45
|
432 U.S. 526
97 S.Ct. 2474
53 L.Ed.2d 534
Edward W. MAHER, etc.v.Donna DOE et al.
No. 76-878.
June 20, 1977.
PER CURIAM.
1
The motion of appellees for leave to proceed in forma pauperis is granted.
2
Appellees are mothers of illegitimate children who receive welfare benefits from the State of Connecticut under the Aid to Families with Dependent Children program administered for the Federal Government by the Department of Health, Education, and Welfare (HEW). They are prosecuting this litigation to challenge the constitutionality of § 52-440b, Conn.Gen.Stat.Ann. (1977), which would require them, under pain of contempt, to divulge to appellant the names of the fathers of their children.
3
In 1975, after a three-judge District Court upheld the constitutionality of § 52-440b, we vacated the judgment and remanded for further consideration in light of an intervening amendment to § 402(a) of the Social Security Act,* and, if a relevant state proceeding was pending, in light of 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). Roe v. Norton, 422 U.S. 391, 95 S.Ct. 2221, 45 L.Ed.2d 268.
4
On remand the District Court held that the Younger/Huffman doctrine did not prohibit the issuance of an injunction in this case. 414 F.Supp. 1368 (Conn.1976). The court also held that § 52-440b remained valid provided the Connecticut welfare authorities first determine, in accordance with § 402(a) of the federal statute, that the appellees did not have "good cause" for refusing to cooperate, under standards which take into account the "best interests of the child." 414 F.Supp., at 1381.
5
Noting that the Secretary of HEW has not yet promulgated regulations defining "good cause" and "best interests of the child," appellant reads the District Court's opinion as enjoining any state proceedings under § 52-440b until such guidance is forthcoming. But the court's opinion contains the following passage in a footnote:
6
"HEW has taken the position that the entire amendment (to § 402(a)) will not become effective until the new regulations have been approved. We do not believe that this is the proper construction of the act.
7
". . . (T)he wiser course is to require the Commissioner, if he is unable to determine without the aid of specific regulations that his proposed enforcement action is not against the best interests of the child, to postpone any enforcement until the new regulations have been issued and approved." 414 F.Supp., at 1381 n. 20.
8
Though it is somewhat ambiguous, the quoted portion can be read to require appellant to make his own determination of "good cause" and "best interests of the child" if he is able to do so without the aid of the HEW regulations. If this is the correct reading, appellant's apprehension that he is presently barred from proceeding in accordance with § 52-440b would be erroneous.
9
The day after the District Court issued its opinion on remand a new Connecticut statute became effective, 1976 Conn.Pub. Act No. 76-334, amending Conn.Gen.Stat.Ann. § 17-82b. In pertinent part that statute provides:
10
"All information required to be provided to the commissioner as a condition of such eligibility (for welfare assistance) under federal law shall be so provided by the supervising relative, provided, no person shall be determined to be ineligible if the supervising relative has good cause for the refusal to provide information concerning the absent parent or if the provision of such information would be against the best interests of the dependent child or children, or any of them. The commissioner of social services shall adopt by regulation . . . standards as to good cause and best interests of the child. Any person aggrieved by a decision of the commissioner as to the determination of good cause or the best interests of such child or children may request a fair hearing in accordance with the provisions of sections 17-2a and 17-2b."
11
While it is obvious that this pronouncement is intended to have some effect in the general area of this litigation, its impact on § 52-440b is not clear.
12
Therefore, we must once again vacate the judgment of the District Court and remand this case. That court must now consider its interpretation of § 52-440b in light of the amendment to § 17-82b, and clarify whether appellant is free to make his own "good cause" and "best interests of the child" determinations in the absence of effective HEW regulations.
13
It is so ordered.
*
Pub.L. 93-647, 88 Stat. 2359, amending 42 U.S.C. § 602(a)(26) (1970 ed., Supp. V). The District Court also considered a second, subsequent, change in § 402(a), Pub.L. 94-88, 89 Stat. 436.
| 12
|
432 U.S. 519
97 S.Ct. 2391
53 L.Ed.2d 528
John H. POELKER, etc., et al., Petitioners,v.Jane DOE, etc.
No. 75-442.
June 20, 1977.
Rehearing Denied Oct. 3, 1977. See 434 U.S. 880, 98 S.Ct. 241.
Eugene P. Freeman, St. Louis, Mo., for petitioners.
Frank Susman, St. Louis, Mo., for respondent.
PER CURIAM.
1
Respondent Jane Doe, an indigent, sought unsuccessfully to obtain a nontherapeutic abortion at Starkloff Hospital, one of two city-owned public hospitals in St. Louis, Mo. She subsequently brought this class action under 42 U.S.C. § 1983 against the Mayor of St. Louis and the Director of Health and Hospitals, alleging that the refusal by Starkloff Hospital to provide the desired abortion violated her constitutional rights. Although the District Court ruled against Doe following a trial, the Court of Appeals for the Eighth Circuit reversed in an opinion that accepted both her factual and legal arguments. 515 F.2d 541 (1975).1
2
The Court of Appeals concluded that Doe's inability to obtain an abortion resulted from a combination of a policy directive by the Mayor and a longstanding staffing practice at Starkloff Hospital. The directive, communicated to the Director of Health and Hospitals by the Mayor, prohibited the performance of abortions in the city hospitals except when there was a threat of grave physiological injury or death to the mother. Under the staffing practice, the doctors and medical students at the obstetrics-gynecology clinic at the hospital are drawn from the faculty and students at the St. Louis University School of Medicine, a Jesuit-operated institution opposed to abortion. Relying on our decisions in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Court of Appeals held that the city's policy and the hospital's staffing practice denied the "constitutional rights of indigent pregnant women . . . long after those rights had been clearly enunciated" in Roe and Doe. 515 F.2d, at 547. The court cast the issue in an equal protection mold, finding that the provision of publicly financed hospital services for childbirth but not for elective abortions constituted invidious discrimination. In support of its equal protection analysis, the court also emphasized the contrast between nonindigent women who can afford to obtain abortions in private hospitals and indigent women who cannot. Particular reliance was placed upon the previous decision in Wulff v. Singleton, 508 F.2d 1211 (CA8 1974), reversed on other grounds, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), in which the Court of Appeals had held unconstitutional a state Medicaid statute that provided benefits for women who carried their pregnancies to term but denied them for women who sought elective abortions. The court stated that "(t)here is no practical distinction between that case and this one." 515 F.2d, at 545.
3
We agree that the constitutional question presented here is identical in principle with that presented by a State's refusal to provide Medicaid benefits for abortions while providing them for childbirth. This was the issue before us in Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484. For the reasons set forth in our opinion in that case, we find no constitutional violation by the city of St. Louis in electing, as a policy choice, to provide publicly financed hospital services for childbirth without providing corresponding services for nontherapeutic abortions.
4
In the decision of the Court of Appeals and in the briefs supporting that decision, emphasis is placed on Mayor Poelker's personal opposition to abortion, characterized as "a wanton, callous disregard" for the constitutional rights of indigent women. 515 F.2d, at 547. Although the Mayor's personal position on abortion is irrelevant to our decision, we note that he is an elected official responsible to the people of St. Louis. His policy of denying city funds for abortions such as that desired by Doe is subject to public debate and approval or disapproval at the polls. We merely hold, for the reasons stated in Maher, that the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth as St. Louis has done.2
5
The judgment of the Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
6
It is so ordered.
7
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice BLACKMUN join, dissenting.
8
The Court holds that St. Louis may constitutionally refuse to permit the performance of elective abortions in its city-owned hospitals while providing hospital services to women who carry their pregnancies to term. As stated by the Court of Appeals:
9
"Stripped of all rhetoric, the city here, through its policy and staffing procedure, is simply telling indigent women, like Doe, that if they choose to carry their pregnancies to term, the city will provide physicians and medical facilities for full maternity care; but if they choose to exercise their constitutionally protected right to determine that they wish to terminate the pregnancy, the city will not provide physicians and facilities for the abortion procedure, even though it is probably safer than going through a full pregnancy and childbirth." 515 F.2d 541, 544 (1975).
10
The Court of Appeals held that St. Louis could not in this way "interfer(e) in her decision of whether to bear a child or have an abortion simply because she is indigent and unable to afford private treatment," ibid., because it was constitutionally impermissible that indigent women be " 'subjected to State coercion to bear children which they do not wish to bear (while) no other women similarly situated are so coerced,' " id., at 545.
11
For the reasons set forth in my dissent in Maher v. Roe, 432 U.S. 464, 482, 97 S.Ct. 2376, 2386, 52 L.Ed.2d 484, I would affirm the Court of Appeals. Here the fundamental right of a woman freely to choose to terminate her pregnancy has been infringed by the city of St. Louis through a deliberate policy based on opposition to elective abortions on moral grounds by city officials. While it may still be possible for some indigent women to obtain abortions in clinics or private hospitals, it is clear that the city policy is a significant, and in some cases insurmountable, obstacle to indigent pregnant women who cannot pay for abortions in those private facilities. Nor is the closing of St. Louis' public hospitals an isolated instance with little practical significance. The importance of today's decision is greatly magnified by the fact that during 1975 and the first quarter of 1976 only about 18% of all public hospitals in the country provided abortion services, and in 10 States there were no public hospitals providing such services.1
12
A number of difficulties lie beneath the surface of the Court's holding. Public hospitals that do not permit the performance of elective abortions will frequently have physicians on their staffs who would willingly perform them. This may operate in some communities significantly to reduce the number of physicians who are both willing and able to perform abortions in a hospital setting. It is not a complete answer that many abortions may safely be performed in clinics, for some physicians will not be affiliated with those clinics, and some abortions may pose unacceptable risks if performed outside a hospital. Indeed, such an answer would be ironic, for if the result is to force some abortions to be performed in a clinic that properly should be performed in a hospital, the city policy will have operated to increase rather than reduce health risks associated with abortions; and in Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 (1973), the Court permitted regulation by the State solely to protect maternal health.
13
The Court's holding will also pose difficulties in small communities where the public hospital is the only nearby health care facility. If such a public hospital is closed to abortions, any woman rich or poor will be seriously inconvenienced; and for some women particularly poor women the unavailability of abortions in the public hospital will be an insuperable obstacle. Indeed, a recent survey suggests that the decision in this case will be felt most strongly in rural areas, where the public hospital will in all likelihood be closed to elective abortions, and where there will not be sufficient demand to support a separate abortion clinic.2
14
Because the city policy constitutes "coercion (of women) to bear children which they do not wish to bear," Roe v. Wade and the cases following it require that the city show a compelling state interest that justifies this infringement upon the fundamental right to choose to have an abortion. "[E]xpressing a preference for normal childbirth," ante, at 521, does not satisfy that standard. Roe explicitly held that during the first trimester no state interest in regulating abortions was compelling, and that during the second trimester the State's interest was compelling only insofar as it protected maternal health. 410 U.S., at 162-164, 93 S.Ct., at 731-732. Under Roe, the State's "important and legitimate interest in potential life," id., at 163, 93 S.Ct., at 732 which I take to be another way of referring to a State's "preference for normal childbirth" becomes compelling only at the end of the second trimester. Thus it is clear that St. Louis' policy preference is insufficient to justify its infringement on the right of women to choose to have abortions during the first two trimesters of pregnancy without interference by the State on the ground of moral opposition to abortions. St. Louis' policy therefore "unduly burdens the right to seek an abortion," Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976).
15
I would affirm the Court of Appeals.
1
The facts concerning Doe's visit to the hospital and the reason for her inability to obtain an abortion are hotly disputed. Our view that the Court of Appeals erred in the application of the law to the facts as stated in its opinion makes it unnecessary to describe or resolve this conflict.
2
The Court of Appeals awarded attorney's fees to respondent under the "bad faith" exception to the traditional American Rule disfavoring allowance of such fees to the prevailing party. See Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). It follows from our decision on the constitutional merits that it was an error to award attorney's fees to respondent.
1
Sullivan, Tietze, & Dryfoos, Legal Abortion in the United States, 1975-1976, 9 Family Planning Perspectives 116, 121, 128 (1977).
2
"The concentration of services among relatively few providers mostly clincis in the nation's larger cities is clearly associated with the failure of hospitals especially the smaller hospitals that are the major health institutions in small cities and nonmetropolitan areas to offer abortions along with their other health services. Since public hospitals are even less likely than private hospitals to provide abortions, it is poor, rural and very young women who are most likely to be denied abortions as a result of the need to travel outside their own communities to obtain terminations. It is these women who are least likely to have the funds, the time or the familiarity with the medical system that they need to be able to cope with the problems associated with such travel." Id., at 121.
| 45
|
433 U.S. 1
97 S.Ct. 2476
53 L.Ed.2d 538
UNITED STATES, Petitioner,v.Joseph A. CHADWICK et al., Respondents.
No. 75-1721.
Argued April 26, 1977.
Decided June 21, 1977.
Syllabus
When respondents arrived by train in Boston from San Diego, they were arrested at their waiting automobile by federal narcotics agents, who had been alerted that respondents were possible drug traffickers. A double-locked footlocker, which respondents had transported on the train and which the agents had probable cause to believe contained narcotics, had been loaded in the trunk of the automobile. Respondents, together with the automobile and footlocker, which was admittedly under the agents' exclusive control, were then taken to the Federal Building in Boston. An hour and a half after the arrests the agents opened the footlocker without respondents' consent or a search warrant and found large amounts of marihuana in it. Respondents were subsequently indicted for possession of marihuana with intent to distribute it. The District Court granted their pretrial motion to suppress the marihuana obtained from the footlocker, holding that warrantless searches are per se unreasonable under the Fourth Amendment unless they fall within some established exception to the warrant requirement, and that the footlocker search was not justified under either the "automobile exception" or as a search incident to a lawful arrest; the Court of Appeals affirmed. Held: Respondents were entitled to the protection of the Warrant Clause of the Fourth Amendment, with the evaluation of a neutral magistrate, before their privacy interests in the contents of the footlocker were invaded. Pp. 6-16.
(a) A fundamental purpose of the Fourth Amendment is to safeguard individuals from unreasonable government invasions of legitimate privacy interests, and not simply those interests inside the four walls of the home. Pp. 6-11.
(b) By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination, and no less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment's Warrant Clause; since there was no exigency calling for an immediate search, it was unreasonable for the Government to conduct the search without the safeguards a judicial warrant provides. P. 11.
(c) The footlocker search was not justified under the "automobile exception," since a person's expectations of privacy in personal luggage are substantially greater than in an automobile. In this connection, the footlocker's mobility did not justify dispensing with a search warrant, because once the federal agents had seized the footlocker at the railroad station and safely transferred it to the Federal Building under their exclusive control, there was not the slightest danger that it or its contents could have been removed before a valid search warrant could be obtained. Pp. 11-13.
(d) Nor was the footlocker search justified as a search incident to a lawful arrest, where the search was remote in time or place from the arrest and no exigency existed, the search having been conducted more than an hour after the federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody. Pp. 14-16.
1 Cir., 532 F.2d 773, affirmed.
A. Raymond Randolph, Jr., Deputy Sol. Gen., Washington, D. C., for petitioner.
Martin G. Weinberg, Boston, Mass., for respondents.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case to decide whether a search warrant is required before federal agents may open a locked footlocker which they have lawfully seized at the time of the arrest of its owners, when there is probable cause to believe the footlocker contains contraband.
2
(1)
3
On May 8, 1973, Amtrak railroad officials in San Diego observed respondents Gregory Machado and Bridget Leary load a brown footlocker onto a train bound for Boston. Their suspicions were aroused when they noticed that the trunk was unusually heavy for its size, and that it was leaking talcum power, a substance often used to mask the odor of marihuana or hashish. Because Machado matched a profile used to spot drug traffickers, the railroad officials reported these circumstances to federal agents in San Diego, who in turn relayed the information, together with detailed descriptions of Machado and the footlocker, to their counterparts in Boston.
4
When the train arrived in Boston two days later, federal narcotics agents were on hand. Though the officers had not obtained an arrest or search warrant, they had with them a police dog trained to detect marihuana. The agents identified Machado and Leary and kept them under surveillance as they claimed their suitcases and the footlocker, which had been transported by baggage cart from the train to the departure area. Machado and Leary lifted the footlocker from the baggage cart, placed it on the floor and sat down on it.
5
The agents then released the dog near the footlocker. Without alerting respondents, the dog signaled the presence of a controlled substance inside. Respondent Chadwick then joined Machado and Leary, and they engaged an attendant to move the footlocker outside to Chadwick's waiting automobile. Machado, Chadwick, and the attendant together lifted the 200-pound footlocker into the trunk of the car, while Leary waited in the front seat. At that point, while the trunk of the car was still open and before the car engine had been started, the officers arrested all three. A search disclosed no weapons, but the keys to the footlocker were apparently taken from Machado.
6
Respondents were taken to the Federal Building in Boston; the agents followed with Chadwick's car and the footlocker. As the Government concedes, from the moment of respondents' arrests at about 9 p. m., the footlocker remained under the exclusive control of law enforcement officers at all times. The footlocker and luggage were placed in the Federal Building, where, as one of the agents later testified, "there was no risk that whatever was contained in the footlocker trunk would be removed by the defendants or their associates." App. 44. The agents had no reason to believe that the footlocker contained explosives or other inherently dangerous items, or that it contained evidence which would lose its value unless the footlocker were opened at once. Facilities were readily available in which the footlocker could have been stored securely; it is not contended that there was any exigency calling for an immediate search.
7
At the Federal Building an hour and a half after the arrests, the agents opened the footlocker and luggage. They did not obtain respondents' consent; they did not secure a search warrant. The footlocker was locked with a padlock and a regular trunk lock. It is unclear whether it was opened with the keys taken from respondent Machado, or by other means. Large amounts of marihuana were found in the footlocker.1
8
Respondents were indicted for possession of marihuana with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), and for conspiracy, in violation of 21 U.S.C. § 846. Before trial, they moved to suppress the marihuana obtained from the footlocker. In the District Court, the Government sought to justify its failure to secure a search warrant under the "automobile exception" of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and as a search incident to the arrests. Holding that "(w)arrantless searches are per se unreasonable, subject to a few carefully delineated and limited exceptions," the District Court rejected both justifications. 393 F.Supp. 763, 771 (Mass.1975). The court saw the relationship between the footlocker and Chadwick's automobile as merely coincidental, and held that the double-locked, 200-pound footlocker was not part of "the area from within which (respondents) might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969).
9
A divided Court of Appeals for the First Circuit affirmed the suppression of the seized marihuana. The court held that the footlocker had been properly taken into federal custody after respondents' lawful arrest; it also agreed that the agents had probable cause to believe that the footlocker contained a controlled substance when they opened it. But probable cause alone was held not enough to sustain the warrantless search. On the premise that warrantless searches are per se unreasonable unless they fall within some established exception to the warrant requirement, the Court of Appeals agreed with the District Court that the footlocker search was not justified either under the "automobile exception" or as a search incident to a lawful arrest.
10
The Court of Appeals then responded to an argument, suggested by the Government for the first time on appeal, that movable personalty lawfully seized in a public place should be subject to search without a warrant if there exists probable cause to believe it contains evidence of a crime. Conceding that such personalty shares some characteristics of mobility which support warrantless automobile searches, the court nevertheless concluded that a rule permitting a search of personalty on probable cause alone had not yet "received sufficient recognition by the Supreme Court outside the automobile area, or generally, for us to recognize it as a valid exception to the fourth amendment warrant requirement." 532 F.2d 773, 781 (1976). We granted certiorari, 429 U.S. 814, 97 S.Ct. 54, 50 L.Ed.2d 74 (1976). We affirm.
11
(2)
12
In this Court the Government again contends that the Fourth Amendment Warrant Clause protects only interests traditionally identified with the home.2 Recalling the colonial writs of assistance, which were often executed in searches of private dwellings, the Government claims that the Warrant Clause was adopted primarily, if not exclusively, in response to unjustified intrusions into private homes on the authority of general warrants. The Government argues there is no evidence that the Framers of the Fourth Amendment intended to disturb the established practice of permitting warrantless searches outside the home, or to modify the initial clause of the Fourth Amendment by making warrantless searches supported by probable cause per se unreasonable.
13
Drawing on its reading of history, the Government argues that only homes, offices, and private communications implicate interests which lie at the core of the Fourth Amendment. Accordingly, it is only in these contexts that the determination whether a search or seizure is reasonable should turn on whether a warrant has been obtained. In all other situations, the Government contends, less significant privacy values are at stake, and the reasonableness of a government intrusion should depend solely on whether there is probable cause to believe evidence of criminal conduct is present. Where personal effects are lawfully seized outside the home on probable cause, the Government would thus regard searches without a warrant as not "unreasonable."
14
We do not agree that the Warrant Clause protects only dwellings and other specifically designated locales. As we have noted before, the Fourth Amendment "protects people, not places," Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); more particularly, it protects people from unreasonable government intrusions into their legitimate expectations of privacy. In this case, the Warrant Clause makes a significant contribution to that protection. The question, then, is whether a warrantless search in these circumstances was unreasonable.3
15
(3)
16
It cannot be doubted that the Fourth Amendment's commands grew in large measure out of the colonists' experience with the writs of assistance and their memories of the general warrants formerly in use in England. These writs, which were issued on executive rather than judicial authority, granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods. Though the authority to search granted by the writs was not limited to the home, searches conducted pursuant to them often were carried out in private residences. See generally Stanford v. Texas, 379 U.S. 476, 481-485, 85 S.Ct. 506, 509-511, 13 L.Ed.2d 431 (1965); Marcus v. Search Warrant, 367 U.S. 717, 724-729, 81 S.Ct. 1708, 1712-1714, 6 L.Ed.2d 1127 (1961); Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959).
17
Although the searches and seizures which deeply concerned the colonists, and which were foremost in the minds of the Framers, were those involving invasions of the home, it would be a mistake to conclude, as the Government contends, that the Warrant Clause was therefore intended to guard only against intrusions into the home. First, the Warrant Clause does not in terms distinguish between searches conducted in private homes and other searches. There is also a strong historical connection between the Warrant Clause and the initial clause of the Fourth Amendment, which draws no distinctions among "persons, houses, papers, and effects" in safeguarding against unreasonable searches and seizures. See United States v. Rabinowitz, 339 U.S. 56, 68, 70 S.Ct. 430, 445, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting).
18
Moreover, if there is little evidence that the Framers intended the Warrant Clause to operate outside the home, there is no evidence at all that they intended to exclude from protection of the Clause all searches occurring outside the home. The absence of a contemporary outcry against warrantless searches in public places was because, aside from searches incident to arrest, such warrantless searches were not a large issue in colonial America. Thus, silence in the historical record tells us little about the Framers' attitude toward application of the Warrant Clause to the search of respondents' footlocker.4 What we do know is that the Framers were men who focused on the wrongs of that day but who intended the Fourth Amendment to safeguard fundamental values which would far outlast the specific abuses which gave it birth.
19
Moreover, in this area we do not write on a clean slate. Our fundamental inquiry in considering Fourth Amendment issues is whether or not a search or seizure is reasonable under all the circumstances. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). The judicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement 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). Once a lawful search has begun, it is also far more likely that it will not exceed proper bounds when it is done pursuant to a judicial authorization "particularly describing the place to be searched and the persons or things to be seized." Further, a warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search. Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930 (1967).
20
Just as the Fourth Amendment "protects people, not places," the protections a judicial warrant offers against erroneous governmental intrusions are effective whether applied in or out of the home. Accordingly, we have held warrantless searches unreasonable, and therefore unconstitutional, in a variety of settings.5 A century ago, Mr. Justice Field, speaking for the Court, included within the reach of the Warrant Clause printed matter traveling through the mails within the United States:
21
"Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household." Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1878).
22
We reaffirmed Jackson in United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), where a search warrant was obtained to open two packages which, on mailing, the sender had declared contained only coins. Judicial warrants have been required for other searches conducted outside the home. E. g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (electronic interception of conversation in public telephone booth); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (automobile on private premises); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) (automobile in custody); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951) (hotel room); G. M. Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977) (office); Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) (office). These cases illustrate the applicability of the Warrant Clause beyond the narrow limits suggested by the Government. They also reflect the settled constitutional principle, discussed earlier, that a fundamental purpose of the Fourth Amendment is to safeguard individuals from unreasonable government invasions of legitimate privacy interests,6 and not simply those interests found inside the four walls of the home. Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949).
23
In this case, important Fourth Amendment privacy interests were at stake. By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause. There being no exigency, it was unreasonable for the Government to conduct this search without the safeguards a judicial warrant provides.
24
(4)
25
The Government does not contend that the footlocker's brief contact with Chadwick's car makes this an automobile search, but it is argued that the rationale of our automobile search cases demonstrates the reasonableness of permitting warrantless searches of luggage; the Government views such luggage as analogous to motor vehicles for Fourth Amendment purposes. It is true that, like the footlocker in issue here, automobiles are "effects" under the Fourth Amendment, and searches and seizures of automobiles are therefore subject to the constitutional standard of reasonableness. But this Court has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Preston v. United States, supra, 376 U.S., at 366-367, 84 S.Ct., at 882-883; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). See also South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3095, 49 L.Ed.2d 1000 (1976).
26
Our treatment of automobiles has been based in part on their inherent mobility, which often makes obtaining a judicial warrant impracticable. Nevertheless, we have also sustained "warrantless searches of vehicles . . . in cases in which the possibilities of the vehicle's being removed or evidence in it destroyed were remote, if not nonexistent." Cady v. Dombrowski, 413 U.S. 433, 441-442, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973); accord, South Dakota v. Opperman, supra, 428 U.S., at 367, 96 S.Ct., at 3095; see Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Chambers v. Maroney, supra ; Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).
27
The answer lies in the diminished expectation of privacy which surrounds the automobile:
28
"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. . . . It travels public thoroughfares where both its occupants and its contents are in plain view." Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion).
29
Other factors reduce automobile privacy. "All States require vehicles to be registered and operators to be licensed. States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may be operated on public streets and highways." Cady v. Dombrowski, supra, 413 U.S., at 441, 93 S.Ct., at 2528. Automobiles periodically undergo official inspection, and they are often taken into police custody in the interests of public safety. South Dakota v. Opperman, supra, 428 U.S., at 368, 96 S.Ct., at 3096.
30
The factors which diminish the privacy aspects of an automobile do not apply to respondents' footlocker. Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person's expectations of privacy in personal luggage are substantially greater than in an automobile.
31
Nor does the footlocker's mobility justify dispensing with the added protections of the Warrant Clause. Once the federal agents had seized it at the railroad station and had safely transferred it to the Boston Federal Building under their exclusive control, there was not the slightest danger that the footlocker or its contents could have been removed before a valid search warrant could be obtained.7 The initial seizure and detention of the footlocker, the validity of which respondents do not contest, were sufficient to guard against any risk that evidence might be lost. With the footlocker safely immobilized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant.8
32
Finally, the Government urges that the Constitution permits the warrantless search of any property in the possession of a person arrested in public, so long as there is probable cause to believe that the property contains contraband or evidence of crime. Although recognizing that the footlocker was not within respondents' immediate control, the Government insists that the search was reasonable because the footlocker was seized contemporaneously with respondents' arrests and was searched as soon thereafter as was practicable. The reasons justifying search in a custodial arrest are quite different. When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless "search of the arrestee's person and the area 'within his immediate control' construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S., at 763, 89 S.Ct., at 2040. See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
33
Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests make warrantless searches of items within the "immediate control" area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Terry v. Ohio, supra. However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the "search is remote in time or place from the arrest," Preston v. United States, 376 U.S., at 367, 84 S.Ct., at 883, or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.9
34
Here the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency. Even though on this record the issuance of a warrant by a judicial officer was reasonably predictable, a line must be drawn. In our view, when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority. Respondents were therefore entitled to the protection of the Warrant Clause with the evaluation of a neutral magistrate, before their privacy interests in the contents of the footlocker were invaded.10
Accordingly, the judgment is
35
Affirmed.
36
Mr. Justice BRENNAN, concurring.
37
I fully join THE CHIEF JUSTICE's thorough opinion for the Court. I write only to comment upon two points made by my Brother BLACKMUN's dissent.
38
First, I agree wholeheartedly with my Brother BLACKMUN that it is "unfortunate" that the Government in this case "sought . . . to vindicate an extreme view of the Fourth Amendment." Post, at 17. It is unfortunate, in my view, not because this argument somehow "distract(ed)" the Court from other more meritorious arguments made by the Government these arguments are addressed and convincingly rejected in the Court's opinion but because it is deeply distressing that the Department of Justice, whose mission is to protect the constitutional liberties of the people of the United States, should even appear to be seeking to subvert them by extreme and dubious legal arguments. It is gratifying that the Court today unanimously rejects the Government's position.
39
Second, it should be noted that while Part II of the dissent suggests a number of possible alternative courses of action that the agents could have followed without violating the Constitution, no decision of this Court is cited to support the constitutionality of these courses, but only some decisions of Courts of Appeals. Post, at 23, nn. 4 and 5. In my view, it is not at all obvious that the agents could legally have searched the footlocker had they seized it after Machado and Leary had driven away with it in their car1 or "at the time and place of the arrests."2
40
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, dissenting.
41
I think it somewhat unfortunate that the Government sought a reversal in this case primarily to vindicate an extreme view of the Fourth Amendment that would restrict the protection of the Warrant Clause to private dwellings and a few other "high privacy" areas. I reject this argument for the reasons stated in Parts (2) and (3) of the Court's opinion, with which I am in general agreement. The overbroad nature of the Government's principal argument, however, has served to distract the Court from the more important task of defining the proper scope of a search incident to an arrest. The Court fails to accept the opportunity this case presents to apply the rationale of recent decisions and develop a clear doctrine concerning the proper consequences of custodial arrest. Accordingly, I dissent from the judgment.
42
* One line of recent decisions establishes that no warrant is required for the arresting officer to search the clothing and effects of one placed in custodial arrest. The rationale for this was explained in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973):
43
"A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." Id., at 235, 94 S.Ct., at 477.
44
Accord, Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Under this doctrine, a search of personal effects need not be contemporaneous with the arrest, and indeed may be delayed a number of hours while the suspect remains in lawful custody. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).
45
A second series of decisions concerns the consequences of custodial arrest of a person driving an automobile. The car may be impounded and, with probable cause, its contents (including locked compartments) subsequently examined without a warrant. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Cady v. Dombrowski, 413 U.S. 433, 439-448, 93 S.Ct. 2523, 2527-2531, 37 L.Ed.2d 706 (1973); Chambers v. Maroney, 399 U.S. 42, 47-52, 90 S.Ct. 1975, 1979-1981, 26 L.Ed.2d 419 (1970). Moreover, once a car has been properly impounded for any reason, the police may follow a standard procedure of inventorying its contents without any showing of probable cause. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).
46
I would apply the rationale of these two lines of authority and hold generally that a warrant is not required to seize and search any movable property in the possession of a person properly arrested in a public place. A person arrested in a public place is likely to have various kinds of property with him: items inside his clothing, a briefcase or suitcase, packages, or a vehicle. In such instances the police cannot very well leave the property on the sidewalk or street while they go to get a warrant. The items may be stolen by a passer-by or removed by the suspect's confederates. Rather than requiring the police to "post a guard" over such property, I think it is surely reasonable for the police to take the items along to the station with the arrested person.
47
In the present case the Court of Appeals held, and respondents do not contest, that it was proper for the federal agents to seize the footlocker and take it to their office. Given the propriety of seizing the footlocker, there is some reason to believe that the subsequent search a fortiori was permissible. See Chambers v. Maroney, 399 U.S., at 51-52, 90 S.Ct., at 1981. I acknowledge, however, that impounding the footlocker without searching it would have been a less intrusive alternative in this case. The police could have waited to conduct their search until after a warrant had been obtained. Nevertheless, the mere fact that a warrant could have been obtained while the footlocker was safely impounded does not necessarily make the warrantless search unreasonable. See, e. g., United States v. Edwards, 415 U.S., at 805, 94 S.Ct., at 1238; Cardwell v. Lewis, 417 U.S. 583, 595-596, 94 S.Ct. 2464, 2471-2472, 41 L.Ed.2d 325 (1974) (plurality opinion).
48
As the Court in Robinson recognized, custodial arrest is such a serious deprivation that various lesser invasions of privacy may be fairly regarded as incidental. An arrested person, of course, has an additional privacy interest in the objects in his possession at the time of arrest. To be sure, allowing impoundment of those objects pursuant to arrest, but requiring a warrant for examination of their contents, would protect that incremental privacy interest in cases where the police assessment of probable cause is subsequently rejected by a magistrate. But a countervailing consideration is that a warrant would be routinely forthcoming in the vast majority of situations where the property has been seized in conjunction with the valid arrest of a person in a public place. I therefore doubt that requiring the authorities to go through the formality of obtaining a warrant in this situation would have much practical effect in protecting Fourth Amendment values.1
49
I believe this sort of practical evaluation underlies the Court's decision permitting clothing, personal effects, and automobiles to be searched without a warrant as an incident of arrest, even though it would be possible simply to impound these items until a warrant could be obtained. The Court's opinion does not explain why a wallet carried in the arrested person's clothing, but not the footlocker in the present case, is subject to "reduced expectations of privacy caused by the arrest." Ante, at 16 n. 10. Nor does the Court explain how such items as purses or briefcases fit into the dichotomy.2 Perhaps the holding in the present case will be limited in the future to objects that are relatively immobile by virtue of their size or absence of a means of propulsion.
50
It is also possible that today's decision will not have much impact because other doctrines often will be available to sustain warrantless searches of objects in police custody. As the Court acknowledges, ante, at 15 n. 9, no warrant is necessary when the authorities suspect the object they have impounded has dangerous contents. Moreover, police may establish a routine procedure of inventorying the contents of any container taken into custody, for reasons of security and property conservation. Cf. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Law enforcement officers should not be precluded from conducting an inventory search when they take a potential "Trojan horse" into their office. Finally, exigent circumstances may often justify an immediate search of property seized in conjunction with an arrest, in order to facilitate the apprehension of confederates or the termination of continuing criminal activity. Cf. Warden v. Hayden, 387 U.S. 294, 298-300, 87 S.Ct. 1642, 1645-1646, 18 L.Ed.2d 782 (1967).
51
Since one of the preceding special circumstances is likely to be available in most instances, and since the suspect's expectations of privacy are properly abated by the fact of arrest itself, it would be better, in my view, to adopt a clearcut rule permitting property seized in conjunction with a valid arrest in a public place to be searched without a warrant. Such an approach would simplify the constitutional law of criminal procedure without seriously derogating from the values protected by the Fourth Amendment's prohibition of unreasonable searches and seizures.3
II
52
The approach taken by the Court has the perverse result of allowing fortuitous circumstances to control the outcome of the present case. The agents probably could have avoided having the footlocker search held unconstitutional either by delaying the arrest for a few minutes or by conducting the search on the spot rather than back at their office. Probable cause for the arrest was present from the time respondents Machado and Leary were seated on the footlocker inside Boston's South Station and the agents' dog signalled the presence of marihuana. Rather than make an arrest at this moment, the agents commendably sought to determine the possible involvement of others in the illegal scheme. They waited a short time until respondent Chadwick arrived and the footlocker had been loaded into the trunk of his car, and then made the arrest. But if the agents had postponed the arrest just a few minutes longer until the respondents started to drive away, then the car could have been seized, taken to the agents' office, and all its contents including the footlocker searched without a warrant.4
53
Alternatively, the agents could have made a search of the footlocker at the time and place of the arrests. Machado and Leary were standing next to an open automobile trunk containing the footlocker, and thus it was within the area of their "immediate control." And certainly the footlocker would have been properly subject to search at the time if the arrest had occurred a few minutes earlier while Machado and Leary were seated on it.5
54
In many cases, of course, small variations in the facts are determinative of the legal outcome. Criminal law necessarily involves some line drawing. But I see no way that these alternative courses of conduct, which likely would have been held constitutional under the Fourth Amendment, would have been any more solicitous of the privacy or well-being of the respondents. Indeed, as Judge Thomsen observed in dissenting from this aspect of the Court of Appeals' decision that is today affirmed, the course of conduct followed by the agents in this case was good police procedure.6 It is decisions of the kind made by the Court today that make criminal law a trap for the unwary policeman and detract from the important activities of detecting criminal activity and protecting the public safety.
1
Marihuana was also found in the suitcases. The Court of Appeals found no adequate justification for the warrantless suitcase search, and suppressed this evidence. Incriminating statements made by respondent Chadwick during the arrest procedure were also suppressed, on the theory that there had not been probable cause to arrest him and that his statements were therefore tainted as the product of an illegal arrest. However, the petition for certiorari draws into question only the footlocker search; consequently, we need not pass on the legality of Chadwick's arrest or the search of the suitcases.
2
The Fourth Amendment provides:
"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."
3
In this Court the Government has limited the question presented to "(w) hether a search warrant is required before federal agents may open a locked footlocker that is properly in their possession and that they have probable cause to believe contains contraband." Accordingly, this case presents no issue of the application of the exclusionary rule.
4
The Government's historical analysis is further undercut by its own arguments. The government acknowledges that the core values the Fourth Amendment protects are privacy interests. In its view, those privacy interests which should receive the "maximum protection from governmental search or seizure" provided by the Warrant Clause include private oral and electronic communication, "(i)n addition to the home and other structures such as an office or hotel room . . . ." Brief for United States 30. It is not readily apparent how the Government's contention that the Warrant Clause applies to high privacy areas, both within and without the home, can be reconciled with its earlier contention that judicial warrants are appropriate only for searches conducted within private dwellings.
5
In circumstances involving noncriminal inventory searches, where probable cause to search is irrelevant, we have recognized "that search warrants are not required, linked as the warrant requirement textually is to the probable-cause concept." South Dakota v. Opperman, 428 U.S. 364, 370 n. 5, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976). This is so because the salutary functions of a warrant simply have no application in that context; the constitutional reasonableness of inventory searches must be determined on other bases.
6
This has been settled law in this Court for over 90 years. At least since Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed.2d 746 (1886), we have known that "(i)t is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property . . . ." Id., at 630, 6 S.Ct., at 532.
This is not to say that the Fourth Amendment translates precisely into a constitutional privacy right. See Katz v. United States, 389 U.S. 347, 350-351, 88 S.Ct., 507, 510-511, 19 L.Ed.2d 576 (1967).
7
This may often not be the case when automobiles are seized. Absolutely secure storage facilities may not be available, see South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976; Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), and the size and inherent mobility of a vehicle make it susceptible to theft or intrusion by vandals.
8
Respondents' principal privacy interest in the footlocker was, of course, not in the container itself, which was exposed to public view, but in its contents. A search of the interior was therefore a far greater intrusion into Fourth Amendment values than the impoundment of the footlocker. Though surely a substantial infringement of respondents' use and possession, the seizure did not diminish respondents' legitimate expectation that the footlocker's contents would remain private.
It was the greatly reduced expectation of privacy in the automobile, coupled with the transportation function of the vehicle, which made the Court in Chambers unwilling to decide whether an immediate search of an automobile, or its seizure and indefinite immobilization, constituted a greater interference with the rights of the owner. This is clearly not the case with locked luggage.
9
Of course, there may be other justifications for a warrantless search of luggage taken from a suspect at the time of his arrest; for example, if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage and disarming the weapon. See, e. g., United States v. Johnson, 467 F.2d 630, 639 (CA2 1972).
10
Unlike searches of the person, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 77 (1974), searches of possessions within an arrestee's immediate control cannot be justified by any reduced expectations of privacy caused by the arrest. Respondents' privacy interest in the contents of the footlocker was not eliminated simply because they were under arrest.
1
While the contents of the car could have been searched pursuant to the automobile exception, it is by no means clear that the contents of locked containers found inside a car are subject to search under this exception, any more than they would be if the police found them in any other place.
2
When Machado and Leary were "standing next to (the) open automobile trunk containing the footlocker," and even when they "were seated on it," post, at 23, it is not obvious to me that the contents of the heavy, securely locked footlocker were within the area of their "immediate control" for purposes of the search-incident-to-arrest doctrine, the justification for which is the possibility that the arrested person might have immediate access to weapons that might endanger the officer's safety or assist in his escape, or to items of evidence that he might conceal or destroy. I would think that the footlocker in this case hardly was " 'within (respondents') immediate control' construing that phrase to mean the area from within which (they) might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969).
1
A search warrant serves additional functions where an arrest takes place in a home or office. The warrant assures the occupants that the officers have legal authority to conduct the search and defines the area to be searched and the objects to be seized. See Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930 (1967). But a warrant would serve none of these functions where the arrest takes place in a public area and the authorities are admittedly empowered to seize the objects in question. Cf. United States v. Watson, 423 U.S. 411, 414-424, 96 S.Ct. 820, 823-828, 46 L.Ed.2d 598 (1976) (warrant not required for arrest, based on probable cause, in public place).
2
The Courts of Appeals generally have held that it is proper for the police to seize a briefcase or package in the possession of a person at the time of arrest, and subsequently to search the property without a warrant after the arrested person has been taken into custody. See, e. g., United States v. Schleis, 543 F.2d 59 (CA8 1976), cert. pending, No. 76-5722; United States v. Battle, 166 U.S.App.D.C. 396, 510 F.2d 776 (1975); United States ex rel. Muhammad v. Mancusi, 432 F.2d 1046 (CA2 1970), cert. denied, 402 U.S. 911, 91 S.Ct. 1391, 28 L.Ed.2d 653 (1971).
3
" 'My basic premise is that Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be 'literally impossible of application by the officer in the field.' " LaFave, "Case-by-Case Adjudication" versus "Standardized Procedures": The Robinson Dilemma, 1974 Sup.Ct.Rev. 127, 141 (footnotes omitted), quoting United States v. Robinson, 153 U.S.App.D.C. 114, 154, 471 F.2d 1082, 1122 (1972) (dissenting opinion), rev'd, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).
4
The scope of the "automobile search" exception to the warrant requirement extends to the contents of locked compartments, including glove compartments and trunks. See cases cited supra, at 19. The Courts of Appeals have construed this doctrine to include briefcases, suitcases, and footlockers inside automobiles. United States v. Tramunti, 513 F.2d 1087, 1104-1105 (CA2 1975); United States v. Issod, 508 F.2d 990, 993 (CA7 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975); United States v. Soriano, 497 F.2d 147 (CA5 1974) (en banc), convictions summarily aff'd sub. nom. United States v. Aviles, 535 F.2d 658 (1976), cert. pending, Nos. 76-5132 and 76-5143; United States v. Evans, 481 F.2d 990, 993-994 (CA9 1973).
5
Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969), authorizes an on-the-spot search of the area within the "immediate control" of an arrested person. It is well established that an immediate search of packages or luggage carried by an arrested person is proper. See Draper v. United States, 358 U.S. 307, 310-311, 79 S.Ct. 329, 331, 3 L.Ed.2d 327 (1959). Such searches have been sustained by the Courts of Appeals even if they occurred after the arrested person had been handcuffed and thus could no longer gain access to the property in question. United States v. Eatherton, 519 F.2d 603, 609-610 (CA1), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975); United States v. Kaye, 492 F.2d 744 (CA6 1974); United States v. Mehciz, 437 F.2d 145 (CA9), cert. denied, 402 U.S. 974 (1971). Searches under the Chimel rationale have also been approved when the suitcase or briefcase was close by, but not touching, the arrested person. United States v. French, 545 F.2d 1021 (CA5 1977) (suitcase "within an arm's length" of arrested person); United States v. Frick, 490 F.2d 666 (CA5 1973), cert. denied, sub nom. Peterson v. United States, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974) (briefcase lying on seat of automobile next to which person was arrested).
6
"A railroad station, after the arrival of a train, is not a good place to conduct such an arrest and search, especially when the agents did not know whether one or more men might respond to the telephone call Machado had made. Nor is a street outside the station a good place to open a footlocker containing marijuana. The agents acted wisely in arresting Machado at the car, and in postponing until they arrived at JFK opening the footlocker, to confirm the fact that it contained contraband." 532 F.2d 773, 786 (1976).
I might add that postponing the arrest until after the car was started would have increased the likelihood that respondents would attempt to evade arrest, possibly endangering innocent bystanders.
| 01
|
433 U.S. 25
97 S.Ct. 2490
53 L.Ed.2d 557
George Henson MIREE et al., Petitioners,v.DeKALB COUNTY, GEORGIA, et al. Judith Anita PHILLIPS, etc., Petitioner, v. DeKALB COUNTY, GEORGIA, et al. FIREMAN'S FUND INSURANCE COMPANY, Petitioner, v. DeKALB COUNTY, GEORGIA, et al. William Michael FIELDS, Petitioner, v. DeKALB COUNTY, GEORGIA, et al.
Nos. 76-607, 76-659, 76-700 and 76-722.
Argued April 27, 1977.
Decided June 21, 1977.
Syllabus
1. In petitioners' consolidated diversity actions against respondent county arising out of an aircraft crash at the county's airport, state rather than federal law held to apply to the resolution of petitioners' claim that, as, respectively, survivors of deceased passengers, the assignee of the aircraft owner, and a burn victim, they are the third-party beneficiaries of grant contracts between the county and the Federal Aviation Administration whereby the county agreed to restrict the use of land adjacent to or near the airport to activities compatible with normal aircraft operations, including landings and takeoffs; that the county breached these contracts by operating a garbage dump adjacent to the airport; and that the cause of the crash was the ingestion of birds swarming from the dump into the aircraft's jet engines shortly after takeoff. The rationale of Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838, that federal common law may govern in diversity cases where a uniform national rule is necessary to further the Federal Government's interest, is inapplicable, since only the rights of private litigants are at issue and no substantial rights or duties of the United States hinge on the outcome of the litigation. Pp. 28-33.
2. Petitioners' claim, argued in this Court, that the Airport and Airway Development Act of 1970 provides an implied civil right of action to recover for death or injury due to violation of the Act, will not be considered where it was neither pleaded, argued, nor briefed in the courts below. Pp. 33-34.
538 F.2d 643, vacated and remanded.
J. Arthur Mozley, Atlanta, Ga., and Alan W. Heldman, Birmingham, Ala., for petitioners.
F. Clay Bush, Atlanta, Ga., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
These consolidated cases arise out of the 1973 crash of a Lear Jet shortly after takeoff from the DeKalb-Peachtree Airport. The United States Court of Appeals for the Fifth Circuit, en banc, affirmed the dismissal of petitioners' complaint against respondent DeKalb County (hereafter respondent), holding that principles of federal common law were applicable to the resolution of petitioners' breach-of-contract claim. We granted certiorari to consider whether federal or state law should have been applied to that claim; we conclude that the latter should govern.
2
* Petitioners are, respectively, the survivors of deceased passengers, the assignee of the jet aircraft owner, and a burn victim. They brought separate lawsuits, later consolidated, against respondent in the United States District Court for the Northern District of Georgia.1 The basis for federal jurisdiction was diversity of citizenship, 28 U.S.C. § 1332, and the complaints asserted that respondent was liable on three independent theories: negligence, nuisance, and breach of contract. The District Court granted respondent's motion to dismiss each of these claims. The courts below have unanimously agreed that the negligence and nuisance theories are without merit; only the propriety of the dismissal of the contract claims remains in the cases.
3
(1) Petitioners seek to impose liability on respondent as third-party beneficiaries of contracts between it and the Federal Aviation Administration (FAA). Their complaints allege that respondent entered into six grant agreements with the FAA. E. g., App. 15.2 Under the terms of the contracts respondent agreed to
4
"take action to restrict the use of land adjacent to or in the immediate vicinity of the Airport to activities and purposes compatible with normal airport operations including landing and takeoff of aircraft." Id., at 19.
5
Petitioners assert that respondent breached the FAA contracts by owning and maintaining a garbage dump adjacent to the airport, and that the cause of the crash was the ingestion of birds swarming from the dump into the jet engines of the aircraft.
6
Applying Georgia law, the District Court found that petitioners' claims as third-party beneficiaries under the FAA contracts were barred by the county's governmental immunity, and dismissed the complaints under Fed.Rule Civ.Proc. 12(b)(6). A divided panel of the Court of Appeals decided that under state law petitioners could sue as third-party beneficiaries and that governmental immunity would not bar the suit. Miree v. United States, 526 F.2d 679 (C.A.5 1976). The dissenting judge argued that the court should have applied federal rather than state law; he concluded that under the principles of federal common law the petitioners in this case did not have standing to sue as third-party beneficiaries of the contracts. Sitting en banc, the Court of Appeals reversed the panel on the breach-of-contract issue and adopted the panel dissent on this point as its opinion. Miree v. United States, 538 F.2d 643 (C.A.5 1976). Judge Morgan, who had written the panel opinion, argued for five dissenters that there was no identifiable federal interest in the outcome of this diversity case, and thus that federal common law had no applicability.
II
7
Since the only basis of federal jurisdiction alleged for petitioners' claim against respondent is diversity of citizenship, 28 U.S.C. § 1332, the case would unquestionably be governed by Georgia law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), but for the fact that the United States is a party to the contracts in question, entered into pursuant to federal statute. See Airport and Airway Development Act of 1970, 84 Stat. 219, as amended, 49 U.S.C. § 1701 et seq. (1970 ed. and Supp. V). The en banc majority of the Court of Appeals adopted, by reference, the view that, given these factors, application of federal common law was required:
8
"Although jurisdiction here is based upon diversity, the contract we are interpreting is one in which the United States is a party, and one which is entered into pursuant to authority conferred by federal statute. The necessity of uniformity of decision demands that federal common law, rather than state law, control the contract's interpretation. United States v. Seckinger, 1970, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224; Smith v. United States, 5 Cir. 1974, 497 F.2d 500; First National Bank v. Small Business Administration, 5 Cir. 1970, 429 F.2d 280." Miree v. United States, 526 F.2d, at 686 (footnote omitted).
9
(2, 3) We do not agree with the conclusion of the Court of Appeals. The litigation before us raises no question regarding the liability of the United States or the responsibilities of the United States under the contracts. The relevant inquiry is a narrow one: whether petitioners as third-party beneficiaries of the contracts have standing to sue respondent. While federal common law may govern even in diversity cases3 where a uniform national rule is necessary to further the interests of the Federal Government, Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943), the application of federal common law to resolve the issue presented here would promote no federal interests even approaching the magnitude of those found in Clearfield Trust :
10
"The issuance of commercial paper by the United States is on a vast scale and transactions in that paper from issuance to payment will commonly occur in several states. The application of state law, even without the conflict of laws rules of the forum, would subject the rights and duties of the United States to exceptional uncertainty. It would lead to great diversity in results by making identical transactions subject to the vagaries of the laws of the several states. The desirability of a uniform rule is plain." Id., at 367, 63 S.Ct., at 575.
11
But, in this case, the resolution of petitioners' breach-of-contract claim against respondent will have no direct effect upon the United States or its Treasury.4 The Solicitor General, waiving his right to respond in these cases advised us:
12
"In the course of the proceedings below, the United States determined that its interests would not be directly affected by the resolution of these issue(s) and therefore did not participate in briefing or argument in the court of appeals. In view of these considerations, the United States does not intend to respond to the petitions unless it is requested to do so by the Court.
13
The operations of the United States in connection with FAA grants such as these are undoubtedly of considerable magnitude. However, we see no reason for concluding that these operations would be burdened or subjected to uncertainty by variant state-law interpretations regarding whether those with whom the United States contracts might be sued by third-party beneficiaries to the contracts. Since only the rights of private litigants are at issue here, we find the Clearfield Trust rationale inapplicable.
14
We think our conclusion that these cases do not fit within the Clearfield Trust rule follows from the Court's later decision in Bank of America National Trust & Savings Assn. v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956), in which the Court declined to apply that rule in a fact situation analogous to this one. Parnell was a diversity action between private parties involving United States bonds. The Bank of America had sued Parnell to recover funds that he had obtained by cashing the bonds, which had been stolen from the bank. There were two issues: whether the bonds were "overdue" and whether Parnell had taken the bonds in good faith. The Court of Appeals, over a dissent, applied federal law to resolve both issues; this Court reversed with respect to the good-faith issue. After stressing that the basis for the Clearfield Trust decision was that the application of state law in that case would "subject the rights and duties of the United States to exceptional uncertainty," 352 U.S., at 33, 77 S.Ct., at 121, the Court rejected the application of the Clearfield Trust rationale:
15
"Securities issued by the Government generate immediate interests of the Government. These were dealt with in Clearfield Trust and in National Metropolitan Bank v. United States, 323 U.S. 454, 65 S.Ct. 354, 89 L.Ed. 383. But they also radiate interests in transactions between private parties. The present litigation is purely between private parties and does not touch the rights and duties of the United States." 352 U.S., at 33, 77 S.Ct., at 121.
16
The Court recognized, as we do here, that the application of state law to the issue of good faith did not preclude the application of federal law to questions directly involving the rights and duties of the Federal Government, and found:
17
"Federal law of course governs the interpretation of the nature of the rights and obligations created by the Government bonds themselves. A decision with respect to the 'overdueness' of the bonds is therefore a matter of federal law, which, in view of our holding, we need not elucidate." Id., at 34, 77 S.Ct., at 122.
18
The parallel between Parnell and these cases is obvious. The question of whether petitioners may sue respondent does not require decision under federal common law since the litigation is among private parties and no substantial rights or duties of the United States hinge on its outcome. On the other hand, nothing we say here forecloses the applicability of federal common law in interpreting the rights and duties of the United States under federal contracts.
19
(4) Nor is the fact that the United States has a substantial interest in regulating aircraft travel and promoting air travel safety sufficient, given the narrow question before us, to call into play the rule of Clearfield Trust. In Wallis v. Pan American Petroleum Corporation, 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966), the Court discussed the nature of a federal interest sufficient to bring forth the application of federal common law:
20
"In deciding whether rules of federal common law should be fashioned, 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. It is by no means enough that, as we may assume, Congress could under the Constitution readily enact a complete code of law governing transactions in federal mineral leases among private parties. Whether latent federal power should be exercised to displace state law is primarily a decision for Congress." (Emphasis added.)
21
The question of whether private parties may, as third-party beneficiaries, sue a municipality for breach of the FAA contracts involves this federal interest only insofar as such lawsuits might be thought to advance federal aviation policy by inducing compliance with FAA safety provisions. However, even assuming the correctness of this notion, we adhere to the language in Wallis, cited above, stating that the issue of whether to displace state law on an issue such as this is primarily a decision for Congress. Congress has chosen not to do so in this case.5 Actually the application of federal common law, as interpreted by the Court of Appeals here would frustrate this federal interest pro tanto, since that court held that this breach-of-contract lawsuit would not lie under federal law. On the other hand, at least in the opinion of the majority of the panel below, Georgia law would countenance the action. Even assuming that a different result were to be reached under federal common law, we think this language from Wallis all but forecloses its application to these cases:
22
"Apart from the highly abstract nature of (the federal) interest, there has been no showing that state law is not adequate to achieve it." Id., at 71, 86 S.Ct., at 1305.
23
We conclude that any federal interest in the outcome of the question before us "is far too speculative, far too remote a possibility to justify the application of federal law to transactions essentially of local concern." Parnell, 352 U.S., at 33-34, 77 S.Ct., at 121.
24
Although we have determined that Georgia law should be applied to the question raised by respondent's motion to dismiss, we shall not undertake to decide the correct outcome under Georgia law. The dissent to the panel opinion, in a footnote, stated that Georgia law would preclude petitioners from suing as third-party beneficiaries. The panel opinion, of course, held otherwise. We doubt that the Court of Appeals would deem itself bound by the dicta found in the footnote to the dissenting opinion which were simply later adopted by reference in the en banc majority opinion. We therefore vacate the judgment and remand to the Court of Appeals for consideration of the claim under applicable Georgia law.
III
25
(5) Petitioners have argued in this Court that the Airport and Airway Development Act of 1970 provides an implied civil right of action to recover for death or injury due to violation of the Act. 84 Stat. 219, as amended, 49 U.S.C. § 1701 et seq. (1970 ed. and Supp. V).6 Petitioners, however, allege only diversity of citizenship as the basis for federal jurisdiction of their lawsuits; they do not rely upon federal-question jurisdiction. 28 U.S.C. § 1331, which would be more consistent with a theory of an implied federal cause of action under that Act. The complaints sought recovery solely on the grounds of negligence, nuisance, and breach of contract. There is no indication that petitioners alleged a violation of a federal statute and a right to recovery for such a violation. The fact that this asserted basis of liability is so obviously an afterthought may be some indication of its merit, but since it was neither pleaded, argued, nor briefed either in the District Court or in the Court of Appeals, we will not consider it. Cf. Lawn v. United States, 355 U.S. 339, 362-363, n. 16, 78 S.Ct. 311, 324, 2 L.Ed.2d 321 (1958).
26
The judgment is vacated, and the cases are remanded to the Court of Appeals for further proceedings consistent with this opinion.
27
It is so ordered.
28
Mr. Chief Justice BURGER, concurring in the judgment.
29
There is language in the Court's opinion which might be misinterpreted as rigidly limiting the application of "federal common law" to only those situations where the rights and obligations of the Federal Government are at issue. I do not agree with such a restrictive approach.
30
I cannot read Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943), and Bank of America National Trust and Savings Assn. v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956) as, in all circumstances, precluding the application of "federal common law" to all matters involving only the rights of private citizens. Certainly, in a diversity action, state substantive law should not be ousted on the basis of " 'an amorphous doctrine of national sovereignty' divorced from any specific constitutional or statutory provision and premised solely on the argument 'that every authorized activity of the United States represents an exercise of its governmental power.' " United States v. Little Lake Misere Land Co., 412 U.S. 580, 592 n. 10, 93 S.Ct. 2389, 2397, 37 L.Ed.2d 187 (1973), quoting United States v. Burnison, 339 U.S. 87, 91, and 92, 70 S.Ct. 503, 505, and 506, 94 L.Ed. 675 (1950). However, I am not prepared to foreclose, at this point, the possibility that there may be situations where the rights and obligations of private parties are so dependent on a specific exercise of congressional regulatory power that "the Constitution or Acts of Congress 'require' otherwise than that state law govern of its own force." United States v. Little Lake Misere Land Co., supra, 412 U.S., at 592-593, 93 S.Ct., at 2397.
31
In such a situation, I would not read Wallis v. Pan American Petroleum Corporation, 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966), to preclude a choice of "federal common law" simply because there is no specific federal legislation governing the particular transaction at issue. Once it has been determined that it would be inappropriate to apply state law and that federal law must govern, "the inevitable incompleteness presented by all legislation means that interstitial federal lawmaking is a basic responsibility of the federal courts." United States v. Little Lake Misere Land Co., supra, 412 U.S., at 593, 93 S.Ct., at 2397. In short, although federal courts will be called upon to invoke it infrequently, there must be " 'federal judicial competence to declare the governing law in an area comprising issues substantially related to an established program of government operation.' " Ibid., quoting Mishkin, The Variousness of "Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797, 800 (1957).
32
Although in my view the issue is close, I conclude, on balance, that the cause of action asserted by the plaintiffs is not so intimately related to the purpose of the Airport and Airway Development Act of 1970, 84 Stat. 219, as amended, 49 U.S.C. § 1701 et seq. (1970 ed. and Supp. V), as to require the application of federal law in this case. See H.R.Rep. No. 91-601 (1969), U.S.Code Cong. & Admin.News 1970, p. 3047. Accordingly, the rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), applies, and I join the judgment of the Court remanding the cases for a determination of the correct outcome under Georgia law.
1
Petitioners also sued the United States under the Federal Tort Claims Act. See 28 U.S.C. §§ 1346(b), 2671 et seq. The litigation before us arises out of the District Court's granting of respondent DeKalb County's motion to dismiss and the entry of final judgment under Fed.Rule Civ.Proc. 54(b). The United States has made no similar motion, and is not a party to the cases in this Court.
2
In reviewing the sufficiency of a complaint in the context of a motion to dismiss we, of course, treat all of the well-pleaded allegations of the complaint as true.
3
The Clearfield Trust rule may apply in diversity cases. See Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165 (1942); Bank of America National Trust & Savings Association v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956); Wallis v. Pan American Petroleum Corporation, 384 U.S. 63, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966).
4
There is no indication that petitioners' tort claim against the United States, see n. 1, supra, will be affected by the resolution of this issue. Indeed, the Federal Tort Claims Act itself looks to state law in determining liability. 28 U.S.C. § 1346(b).
5
The Congress has considered, but not passed, a bill to provide for a federal cause of action arising out of aircraft disasters. See Hearings on S. 961 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, pt. 2, 91st Cong., 1st Sess. (1969).
6
In language similar to that used in the FAA grant agreements, §§ 1718(3) and (4) require, as a condition precedent to approval of an airport development project, written assurances that the airport approaches will be safely maintained and that the use of land adjacent to the airport will be restricted to uses compatible with aircraft takeoff and landing.
| 78
|
433 U.S. 72
97 S.Ct. 2497
53 L.Ed.2d 594
Louie L. WAINWRIGHT, Secretary, Florida Department of Offender Rehabilitation, Petitioner,v.John SYKES.
No. 75-1578.
Argued March 29, 1977.
Decided June 23, 1977.
Rehearing Denied Oct. 3, 1977. See 434 U.S. 880, 98 S.Ct. 241.
Syllabus
During respondent's trial for murder, inculpatory statements made by him to police officers were admitted into evidence. No challenge was made on the ground that respondent had not understood warnings read to him pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; nor did the trial judge sua sponte question their admissibility or hold a factfinding hearing. Respondent, who was convicted, did not challenge the admissibility of the statements on appeal, though later he did so, unavailingly, in a motion to vacate the conviction and in state habeas corpus petitions. He then brought this federal habeas corpus action under 28 U.S.C. § 2254, asserting the inadmissibility of his statements by reason of his lack of understanding of the Miranda warnings. The District Court ruled that under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, respondent had a right to a hearing in the state court on the voluntariness of the statements, and that he had not lost that right by failing to assert his claim at trial or on appeal. The Court of Appeals agreed that respondent was entitled to a Jackson v. Denno hearing and ruled that respondent's failure to comply with Florida's procedural "contemporaneous-objection rule" (which except as specified, requires a defendant to make a motion to suppress evidence prior to trial) would not bar review of the suppression claim unless the right to object was deliberately bypassed for tactical reasons. Held : Respondent's failure to make timely objection under the Florida contemporaneous objection rule to the admission of his inculpatory statements, absent a showing of cause for the noncompliance and some showing of actual prejudice, bars federal habeas corpus review of his Miranda claim. Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216; Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149. Pp. 77-91.
(a) Florida's rule in unmistakable terms and with specified exceptions requires that motions to suppress be raised before trial. P. 85.
(b) There is no constitutional requirement in Jackson v. Denno, supra, or later cases that there be a voluntariness hearing absent some contemporaneous challenge to the use of a confession. P. 86.
(c) The sweeping language set forth in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, which would render a State's contemporaneous-objection rule ineffective to bar review of underlying federal claims in federal habeas corpus proceedings absent a "knowing waiver" or a "deliberate bypass" of the right to so object is rejected as according too little respect to the state contemporaneous-objection rule. Such a rule enables the record to be made with respect to a constitutional claim when witnesses' recollections are freshest; enables the trial judge who observed the demeanor of witnesses to make the factual determinations necessary for properly deciding the federal question; and may, by forcing a trial court decision on the merits of federal constitutional contentions, contribute to the finality of criminal litigation. Conversely, the rule of Fay v. Noia may encourage defense lawyers to take their chances on a verdict of not guilty in a state trial court, intending to raise their constitutional claims in a federal habeas corpus court if their initial gamble fails, and detracts from the perception of the trial of a criminal case as a decisive and portentous event. Pp. 87-90.
(d) Adoption of the "cause" and "prejudice" test of Francis, while giving greater respect than did Fay to the operation of state contemporaneous-objection rules, affords an adequate guarantee that federal habeas corpus courts will not be barred from hearing claims involving an actual miscarriage of justice. The procedural history of this case and the evidence as presented at trial indicate that there exists here neither "cause" nor "prejudice" as are necessary to support federal habeas corpus review of the underlying constitutional contention. Pp. 90-91.
528 F.2d 522, reversed and remanded.
Charles Corces, Jr., Tampa, Fla., for petitioner.
Edward R. Korman, Brooklyn, N.Y., for the U.S., as amicus curiae, by special leave of Court.
William F. Casler, St. Petersburg Beach, Fla., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
We granted certiorari to consider the availability of federal habeas corpus to review a state convict's claim that testimony was admitted at his trial in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a claim which the Florida courts have previously refused to consider on the merits because of noncompliance with a state contemporaneous-objection rule. Petitioner Wainwright, on behalf of the State of Florida, here challenges a decision of the Court of Appeals for the Fifth Circuit ordering a hearing in state court on the merits of respondent's contention.
2
Respondent Sykes was convicted of third-degree murder after a jury trial in the Circuit Court of DeSoto County. He testified at trial that on the evening of January 8, 1972, he told his wife to summon the police because he had just shot Willie Gilbert. Other evidence indicated that when the police arrived at respondent's trailer home, they found Gilbert dead of a shotgun wound, lying a few feet from the front porch. Shortly after their arrival, respondent came from across the road and volunteered that he had shot Gilbert, and a few minutes later respondent's wife approached the police and told them the same thing. Sykes was immediately arrested and taken to the police station.
3
Once there, it is conceded that he was read his Miranda rights, and that he declined to seek the aid of counsel and indicated a desire to talk. He then made a statement, which was admitted into evidence at trial through the testimony of the two officers who heard it,1 to the effect that he had shot Gilbert from the front porch of his trailer home. There were several references during the trial to respondent's consumption of alcohol during the preceding day and to his apparent state of intoxication, facts which were acknowledged by the officers who arrived at the scene. At no time during the trial, however, was the admissibility of any of respondent's statements challenged by his counsel on the ground that respondent had not understood the Miranda warnings.2 Nor did the trial judge question their admissibility on his own motion or hold a factfinding hearing bearing on that issue.
4
Respondent appealed his conviction, but apparently did not challenge the admissibility of the inculpatory statements.3 He later filed in the trial court a motion to vacate the conviction and, in the State District Court of Appeals and Supreme Court, petitions for habeas corpus. These filings, apparently for the first time, challenged the statements made to police on grounds of involuntariness. In all of these efforts respondent was unsuccessful.
5
Having failed in the Florida courts, respondent initiated the present action under 28 U.S.C. § 2254, asserting the inadmissibility of his statements by reason of his lack of understanding of the Miranda warnings.4 The United States District Court for the Middle District of Florida ruled that Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), requires a hearing in a state criminal trial prior to the admission of an inculpatory out-of-court statement by the defendant. It held further that respondent had not lost his right to assert such a claim by failing to object at trial or on direct appeal, since only "exceptional circumstances" of "strategic decisions at trial" can create such a bar to raising federal constitutional claims in a federal habeas action. The court stayed issuance of the writ to allow the state court to hold a hearing on the "voluntariness" of the statements.
6
Petitioner warden appealed this decision to the United States Court of Appeals for the Fifth Circuit. That court first considered the nature of the right to exclusion of statements made without a knowing waiver of the right to counsel and the right not to incriminate oneself. It noted that Jackson v. Denno, supra, guarantees a right to a hearing on whether a defendant has knowingly waived his rights as described to him in the Miranda warnings, and stated that under Florida law "(t)he burden is on the State to secure (a) prima facie determination of voluntariness, not upon the defendant to demand it." 528 F.2d 522, 525 (1976).
7
The court then directed its attention to the effect on respondent's right of Florida Rule Crim.Proc. 3.190(i),5 which it described as "a contemporaneous objection rule" applying to motions to suppress a defendant's inculpatory statements. It focused on this Court's decisions in Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and concluded that the failure to comply with the rule requiring objection at the trial would only bar review of the suppression claim where the right to object was deliberately bypassed for reasons relating to trial tactics. The Court of Appeals distinguished our decision in Davis, supra (where failure to comply with a rule requiring pretrial objection to the indictment was found to bar habeas review of the underlying constitutional claim absent showing of cause for the failure and prejudice resulting), for the reason that "(a) major tenet of the Davis decision was that no prejudice was shown" to have resulted from the failure to object. It found that prejudice is "inherent" in any situation, like the present one, where the admissibility of an incriminating statement is concerned. Concluding that "(t)he failure to object in this case cannot be dismissed as a trial tactic, and thus a deliberate by-pass," the court affirmed the District Court order that the State hold a hearing on whether respondent knowingly waived his Miranda rights at the time he made the statements.
8
The simple legal question before the Court calls for a construction of the language of 28 U.S.C. § 2254(a), which provides that the federal courts 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." But, to put it mildly, we do not write on a clean slate in construing this statutory provision.6 Its earliest counterpart, applicable only to prisoners detained by federal authority, is found in the Judiciary Act of 1789. Construing that statute for the Court in Ex parte Watkins, 3 Pet. 193, 202, 7 L.Ed. 650 (1830), Mr. Chief Justice Marshall said:
9
"An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the Court has general jurisdiction of the subject, although it should be erroneous."
10
See Ex parte Kearney, 7 Wheat. 38, 5 L.Ed. 391 (1822).
11
In 1867, Congress expanded the statutory language so as to make the writ available to one held in state as well as federal custody. For more than a century since the 1867 amendment, this Court has grappled with the relationship between the classical common-law writ of habeas corpus and the remedy provided in 28 U.S.C. § 2254. Sharp division within the Court has been manifested on more than one aspect of the perplexing problems which have been litigated in this connection. Where the habeas petitioner challenges a final judgment of conviction rendered by a state court, this Court has been called upon to decide no fewer than four different questions, all to a degree interrelated with one another: (1) What types of federal claims may a federal habeas court properly consider? (2) Where a federal claim is cognizable by a federal habeas court, to what extent must that court defer to a resolution of the claim in prior state proceedings? (3) To what extent must the petitioner who seeks federal habeas exhaust state remedies before resorting to the federal court? (4) In what instances will an adequate and independent state ground bar consideration of otherwise cognizable federal issues on federal habeas review?
12
Each of these four issues has spawned its share of litigation. With respect to the first, the rule laid down in Ex parte Watkins, supra, was gradually changed by judicial decisions expanding the availability of habeas relief beyond attacks focused narrowly on the jurisdiction of the sentencing court. See Ex parte Wells, 18 How. 307, 15 L.Ed. 421 (1856); Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874). Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1880), authorized use of the writ to challenge a conviction under a federal statute where the statute was claimed to violate the United States Constitution. Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915), and Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923), though in large part inconsistent with one another, together broadened the concept of jurisdiction to allow review of a claim of "mob domination" of what was in all other respects a trial in a court of competent jurisdiction.
13
In Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938), an indigent federal prisoner's claim that he was denied the right to counsel at his trial was held to state a contention going to the "power and authority" of the trial court, which might be reviewed on habeas. Finally, in Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942), the Court openly discarded the concept of jurisdiction by then more a fiction than anything else as a touchstone of the availability of federal habeas review, and acknowledged that such review is available for claims of "disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights." Id., at 104-105, 62 S.Ct., at 966. In Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), it was made explicit that a state prisoner's challenge to the trial court's resolution of dispositive federal issues is always fair game on federal habeas. Only last Term in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Court removed from the purview of a federal habeas court challenges resting on the Fourth Amendment, where there has been a full and fair opportunity to raise them in the state court. See Schneckloth v. Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973) (Powell, J., concurring).
14
The degree of deference to be given to a state court's resolution of a federal-law issue was elaborately canvassed in the Court's opinion in Brown v. Allen, supra. Speaking for the Court, Mr. Justice Reed stated: "(Such) state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort of another jurisdiction on federal constitutional issues. It is not res judicata." 344 U.S., at 458, 73 S.Ct., at 408. The duty of the federal habeas court to hold a factfinding hearing in specific situations, notwithstanding the prior resolution of the issues in state court, was thoroughly explored in this Court's later decision in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Congress addressed this aspect of federal habeas in 1966 when it amended § 2254 to deal with the problem treated in Townsend. 80 Stat. 1105. See LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973).
15
The exhaustion-of-state-remedies requirement was first articulated by this Court in the case of Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886). There, a state defendant sought habeas in advance of trial on a claim that he had been indicted under an unconstitutional statute. The writ was dismissed by the District Court, and this Court affirmed, stating that while there was power in the federal courts to entertain such petitions, as a matter of comity they should usually stay their hand pending consideration of the issue in the normal course of the state trial. This rule has been followed in subsequent cases, e. g., Cook v. Hart, 146 U.S. 183, 13 S.Ct. 40, 36 L.Ed. 934 (1892); Whitten v. Tomlinson, 160 U.S. 231, 16 S.Ct. 297, 40 L.Ed. 406 (1895); Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed. 748 (1898); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), and has been incorporated into the language of § 2254.7 Like other issues surrounding the availability of federal habeas corpus relief, though, this line of authority has not been without historical uncertainties and changes in direction on the part of the Court. See Ex parte Hawk, 321 U.S. 114, 116-117, 64 S.Ct. 448, 449-450, 88 L.Ed. 572 (1944); Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950); Irvin v. Dowd, 359 U.S. 394, 405-406, 79 S.Ct. 825, 831-832, 3 L.Ed.2d 900 (1959); Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed.2d 837 (1963).
16
There is no need to consider here in greater detail these first three areas of controversy attendant to federal habeas review of state convictions. Only the fourth area the adequacy of state grounds to bar federal habeas review is presented in this case. The foregoing discussion of the other three is pertinent here only as it illustrates this Court's historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged.
17
(1, 2) As to the role of adequate and independent state grounds, it is a well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts. Fox Film Corp. v. Muller, 296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158 (1935); Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429 (1875). The application of this principle in the context of a federal habeas proceeding has therefore excluded from consideration any questions of state substantive law, and thus effectively barred federal habeas review where questions of that sort are either the only ones raised by a petitioner or are in themselves dispositive of his case. The area of controversy which has developed has concerned the reviewability of federal claims which the state court has declined to pass on because not presented in the manner prescribed by its procedural rules. The adequacy of such an independent state procedural ground to prevent federal habeas review of the underlying federal issue has been treated very differently than where the state-law ground is substantive. The pertinent decisions marking the Court's somewhat tortuous efforts to deal with this problem are: Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010 (1913); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 437, 97 L.Ed. 469 (1953); Fay v. Noia, supra; Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); and Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).
18
In Brown, supra, petitioner Daniels' lawyer had failed to mail the appeal papers to the State Supreme Court on the last day provided by law for filing, and hand delivered them one day after that date. Citing the state rule requiring timely filing, the Supreme Court of North Carolina refused to hear the appeal. This Court, relying in part on its earlier decision in Ex parte Spencer, supra, held that federal habeas was not available to review a constitutional claim which could not have been reviewed on direct appeal here because it rested on an independent and adequate state procedural ground. 344 U.S., at 486-487, 73 S.Ct., at 422.
19
In Fay v. Noia, supra, respondent Noia sought federal habeas to review a claim that his state-court conviction had resulted from the introduction of a coerced confession in violation of the Fifth Amendment to the United States Constitution. While the convictions of his two codefendants were reversed on that ground in collateral proceedings following their appeals, Noia did not appeal and the New York courts ruled that his subsequent coram nobis action was barred on account of that failure. This Court held that petitioner was nonetheless entitled to raise the claim in federal habeas, and thereby overruled its decision 10 years earlier in Brown v. Allen, supra :
20
"(T)he doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute." 372 U.S., at 399, 83 S.Ct., at 827.
21
As a matter of comity but not of federal power, the Court acknowledged "a limited discretion in the federal judge to deny relief . . . to an applicant who had deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." Id., at 438, 83 S.Ct., at 848. In so stating, the Court made clear that the waiver must be knowing and actual " 'an intentional relinquishment or abandonment of a known right or privilege.' " Id., at 439, 83 S.Ct., at 849, quoting Johnson v. Zerbst, 304 U.S., at 464, 83 S.Ct., at 862. Noting petitioner's "grisly choice" between acceptance of his life sentence and pursuit of an appeal which might culminate in a sentence of death, the Court concluded that there had been no deliberate bypass of the right to have the federal issues reviewed through a state appeal.8
22
A decade later we decided Davis v. United States, supra, in which a federal prisoner's application under 28 U.S.C. § 2255 sought for the first time to challenge the makeup of the grand jury which indicted him. The Government contended that he was barred by the requirement of Fed.Rule Crim.Proc. 12(b)(2) providing that such challenges must be raised "by motion before trial." The Rule further provides that failure to so object constitutes a waiver of the objection, but that "the court for cause shown may grant relief from the waiver." We noted that the Rule "promulgated by this Court and, pursuant to 18 U.S.C. § 3771, 'adopted' by Congress, governs by its terms the manner in which the claims of defects in the institution of criminal proceedings may be waived," 411 U.S., at 241, 93 S.Ct., at 1582, and held that this standard contained in the Rule, rather than the Fay v. Noia concept of waiver, should pertain in federal habeas as on direct review. Referring to previous constructions of Rule 12(b)(2), we concluded that review of the claim should be barred on habeas, as on direct appeal, absent a showing of cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation.
23
Last Term, in Francis v. Henderson, supra, the rule of Davis was applied to the parallel case of a state procedural requirement that challenges to grand jury composition be raised before trial. The Court noted that there was power in the federal courts to entertain an application in such a case, but rested its holding on "considerations of comity and concerns for the orderly administration of criminal justice . . . ." 425 U.S., at 538-539, 96 S.Ct., at 1710. While there was no counterpart provision of the state rule which allowed an exception upon some showing of cause, the Court concluded that the standard derived from the Federal Rule should nonetheless be applied in that context since " '(t)here is no reason to . . . give greater preclusive effect to procedural defaults by federal defendants than to similar defaults by state defendants.' " Id., at 542, 96 S.Ct., at 1711, quoting Kaufman v. United States, 394 U.S. 217, 228, 89 S.Ct. 1068, 1069, 22 L.Ed.2d 227 (1969). As applied to the federal petitions of state convicts, the Davis cause-and-prejudice standard was thus incorporated directly into the body of law governing the availability of federal habeas corpus review.
24
To the extent that the dicta of Fay v. Noia may be thought to have laid down an all-inclusive rule rendering state contemporaneous-objection rules ineffective to bar review of underlying federal claims in federal habeas proceedings absent a "knowing waiver" or a "deliberate bypass" of the right to so object its effect was limited by Francis, which applied a different rule and barred a habeas challenge to the makeup of a grand jury. Petitioner Wainwright in this case urges that we further confine its effect by applying the principle enunciated in Francis to a claimed error in the admission of a defendant's confession.
25
(3) Respondent first contends that any discussion as to the effect that noncompliance with a state procedural rule should have on the availability of federal habeas is quite unnecessary because in his view Florida did not actually have a contemporaneous-objection rule. He would have us interpret Florida Rule Crim.Proc. 3.190(i),9 which petitioner asserts is a traditional "contemporaneous objection rule," to place the burden on the trial judge to raise on his own motion the question of the admissibility of any inculpatory statement. Respondent's approach is, to say the least, difficult to square with the language of the Rule, which in unmistakable terms and with specified exceptions requires that the motion to suppress be raised before trial. Since all of the Florida appellate courts refused to review petitioner's federal claim on the merits after his trial, and since their action in so doing is quite consistent with a line of Florida authorities interpreting the rule in question as requiring a contemporaneous objection, we accept the State's position on this point. See Blatch v. State, 216 So.2d 261, 264 (Fla.App. 1968); Dodd v. State, 232 So.2d 235, 238 (Fla.App. 1970); Thomas v. State, 249 So.2d 510, 512 (Fla.App. 1971).
26
(4) Respondent also urges that a defendant has a right under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), to a hearing as to the voluntariness of a confession, even though the defendant does not object to its admission. But we do not read Jackson as creating any such requirement. In that case the defendant's objection to the use of his confession was brought to the attention of the trial court, id., at 374, and n. 4, 84 S.Ct., at 1779, and nothing in the Court's opinion suggests that a hearing would have been required even if it had not been. To the contrary, the Court prefaced its entire discussion of the merits of the case with a statement of the constitutional rule that was to prove dispositive that a defendant has a "right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness . . . ." Id., at 376-377, 84 S.Ct., at 1781 (emphasis added). Language in subsequent decisions of this Court has reaffirmed the view that the Constitution does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession.10
27
(5, 6) We therefore conclude that Florida procedure did, consistently with the United States Constitution, require that respondents' confession be challenged at trial or not at all, and thus his failure to timely object to its admission amounted to an independent and adequate state procedural ground which would have prevented direct review here. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). We thus come to the crux of this case. Shall the rule of Francis v. Henderson, supra, barring federal habeas review absent a showing of "cause" and "prejudice" attendant to a state procedural waiver, be applied to a waived objection to the admission of a confession at trial?11 We answer that question in the affirmative.
28
(7) As earlier noted in the opinion, since Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), it has been the rule that the federal habeas petitioner who claims he is detained pursuant to a final judgment of a state court in violation of the United States Constitution is entitled to have the federal habeas court make its own independent determination of his federal claim, without being bound by the determination on the merits of that claim reached in the state proceedings. This rule of Brown v. Allen is in no way changed by our holding today. Rather, we deal only with contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure. We leave open for resolution in future decisions the precise definition of the "cause"-and-"prejudice" standard, and note here only that it is narrower than the standard set forth in dicta in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), which would make federal habeas review generally available to state convicts absent a knowing and deliberate waiver of the federal constitutional contention. It is the sweeping language of Fay v. Noia, going far beyond the facts of the case eliciting it, which we today reject.12
29
The reasons for our rejection of it are several. The contemporaneous-objection rule itself is by no means peculiar to Florida, and deserves greater respect than Fay gives it, both for the fact that it is employed by a coordinate jurisdiction within the federal system and for the many interests which it serves in its own right. A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding. It enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question. While the 1966 amendment to § 2254 requires deference to be given to such determinations made by state courts, the determinations themselves are less apt to be made in the first instance if there is no contemporaneous objection to the admission of the evidence on federal constitutional grounds.
30
A contemporaneous-objection rule may lead to the exclusion of the evidence objected to, thereby making a major contribution to finality in criminal litigation. Without the evidence claimed to be vulnerable on federal constitutional grounds, the jury may acquit the defendant, and that will be the end of the case; or it may nonetheless convict the defendant, and he will have one less federal constitutional claim to assert in his federal habeas petition.13 If the state trial judge admits the evidence in question after a full hearing, the federal habeas court pursuant to the 1966 amendment to § 2254 will gain significant guidance from the state ruling in this regard. Subtler considerations as well militate in favor of honoring a state contemporaneous-objection rule. An objection on the spot may force the prosecution to take a hard look at its whole card, and even if the prosecutor thinks that the state trial judge will admit the evidence he must contemplate the possibility of reversal by the state appellate courts or the ultimate issuance of a federal writ of habeas corpus based on the impropriety of the state court's rejection of the federal constitutional claim.
31
We think that the rule of Fay v. Noia, broadly stated, may encourage "sandbagging" on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off. The refusal of federal habeas courts to honor contemporaneous-objection rules may also make state courts themselves less stringent in their enforcement. Under the rule of Fay v. Noia, state appellate courts know that a federal constitutional issue raised for the first time in the proceeding before them may well be decided in any event by a federal habeas tribunal. Thus, their choice is between addressing the issue notwithstanding the petitioner's failure to timely object, or else face the prospect that the federal habeas court will decide the question without the benefit of their views.
32
The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the court-room, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification.
33
We believe the adoption of the Francis rule in this situation will have the salutary effect of making the state trial on the merits the "main event," so to speak, rather than a "tryout on the road" for what will later be the determinative federal habeas hearing. There is nothing in the Constitution or in the language of § 2254 which requires that the state trial on the issue of guilt or innocence be devoted largely to the testimony of fact witnesses directed to the elements of the state crime, while only later will there occur in a federal habeas hearing a full airing of the federal constitutional claims which were not raised in the state proceedings. If a criminal defendant thinks that an action of the state trial court is about to deprive him of a federal constitutional right there is every reason for his following state procedure in making known his objection.
34
(8) The "cause"-and-"prejudice" exception of the Francis rule will afford an adequate guarantee, we think, that the rule will not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who in the absence of such an adjudication will be the victim of a miscarriage of justice. Whatever precise content may be given those terms by later cases, we feel confident in holding without further elaboration that they do not exist here. Respondent has advanced no explanation whatever for his failure to object at trial,14 and, as the proceeding unfolded, the trial judge is certainly not to be faulted for failing to question the admission of the confession himself. The other evidence of guilt presented at trial, moreover, was substantial to a degree that would negate any possibility of actual prejudice resulting to the respondent from the admission of his inculpatory statement.
35
We accordingly conclude that the judgment of the Court of Appeals for the Fifth Circuit must be reversed, and the cause remanded to the United States District Court for the Middle District of Florida with instructions to dismiss respondent's petition for a writ of habeas corpus.
36
It is so ordered.
37
Mr. Chief Justice BURGER, concurring.
38
I concur fully in the judgment and in the Court's opinion. I write separately to emphasize one point which, to me, seems of critical importance to this case. In my view, the "deliberate bypass" standard enunciated in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), was never designed for, and is inapplicable to, errors even of constitutional dimension alleged to have been committed during trial.
39
In Fay v. Noia, the Court applied the "deliberate bypass" standard to a case where the critical procedural decision whether to take a criminal appeal was entrusted to a convicted defendant. Although Noia, the habeas petitioner, was represented by counsel, he himself had to make the decision whether to appeal or not; the role of the attorney was limited to giving advice and counsel. In giving content to the new deliberate-bypass standard, Fay looked to the Court's decision in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), a case where the defendant had been called upon to make the decision whether to request representation by counsel in his federal criminal trial. Because in both Fay and Zerbst, important rights hung in the balance of the defendant's own decision, the Court required that a waiver impairing such rights be a knowing and intelligent decision by the defendant himself. As Fay put it:
40
"If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts . . . then it is open to the federal court on habeas to deny him all relief . . .." 372 U.S., at 439, 83 S.Ct., at 849.
41
The touchstone of Fay and Zerbst, then, is the exercise of volition by the defendant himself with respect to his own federal constitutional rights. In contrast, the claim in the case before us relates to events during the trial itself. Typically, habeas petitioners claim that unlawfully secured evidence was admitted, but see Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), or that improper testimony was adduced, or that an improper jury charge was given, but see Henderson v. Kibbe, 431 U.S. 145, 157, 97 S.Ct. 1730, 1738, 52 L.Ed.2d 203 (1977) (Burger, C. J., concurring in judgment), or that a particular line of examination or argument by the prosecutor was improper or prejudicial. But unlike Fay and Zerbst, preservation of this type of claim under state procedural rules does not generally involve an assertion by the defendant himself; rather, the decision to assert or not to assert constitutional rights or constitutionally based objections at trial is necessarily entrusted to the defendant's attorney, who must make on-the-spot decisions at virtually all stages of a criminal trial. As a practical matter, a criminal defendant is rarely, if ever, in a position to decide, for example, whether certain testimony is hearsay and, if so, whether it implicates interests protected by the Confrontation Clause; indeed, it is because " '(e) ven the intelligent and educated layman has small and sometimes no skill in the science of law' " that we held it constitutionally required that every defendant who faces the possibility of incarceration be afforded counsel. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 797, 9 L.Ed.2d 799 (1963).
42
Once counsel is appointed, the day-to-day conduct of the defense rests with the attorney. He, not the client, has the immediate and ultimate responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop. Not only do these decisions rest with the attorney, but such decisions must, as a practical matter, be made without consulting the client.1 The trial process simply does not permit the type of frequent and protracted interruptions which would be necessary if it were required that clients give knowing and intelligent approval to each of the myriad tactical decisions as a trial proceeds.2
43
Since trial decisions are of necessity entrusted to the accused's attorney, the Fay-Zerbst standard of "knowing and intelligent waiver" is simply inapplicable. The dissent in this case, written by the author of Fay v. Noia, implicitly recognizes as much. According to the dissent, Fay imposes the knowing-and-intelligent-waiver standard "where possible" during the course of the trial. In an extraordinary modification of Fay, Mr. Justice Brennan would now require "that the lawyer actually exercis(e) his expertise and judgment in his client's service, and with his client's knowing and intelligent participation where possible"; he does not intimate what guidelines would be used to decide when or under what circumstances this would actually be "possible." Infra, at 116. (Emphasis supplied.) What had always been thought the standard governing the accused's waiver of his own constitutional rights the dissent would change, in the trial setting, into a standard of conduct imposed upon the defendant's attorney. This vague "standard" would be unmanageable to the point of impossibility.
44
The effort to read this expanded concept into Fay is to no avail; that case simply did not address a situation where the defendant had to look to his lawyer for vindication of constitutionally based interests. I would leave the core holding of Fay where it began, and reject this illogical uprooting of an otherwise defensible doctrine.
45
Mr. Justice STEVENS, concurring.
46
Although the Court's decision today may be read as a significant departure from the "deliberate bypass" standard announced in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, I am persuaded that the holding is consistent with the way other federal courts have actually been applying Fay.1 The notion that a client must always consent to a tactical decision not to assert a constitutional objection to a proffer of evidence has always seemed unrealistic to me.2 Conversely, if the constitutional issue is sufficiently grave, even an express waiver by the defendant himself may sometimes be excused.3 Matters such as the competence of counsel, the procedural context in which the asserted waiver occurred, the character of the constitutional right at stake, and the overall fairness of the entire proceeding, may be more significant than the language of the test the Court purports to apply. I therefore believe the Court has wisely refrained from attempting to give precise content to its "cause"-and-"prejudice" exception to the rule of Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149.4
47
In this case I agree with the Court's holding that collateral attack on the state-court judgment should not be allowed. The record persuades me that competent trial counsel could well have made a deliberate decision not to object to the admission of the respondent's in-custody statement. That statement was consistent, in many respects, with the respondent's trial testimony. It even had some positive value, since it portrayed the respondent as having acted in response to provocation, which might have influenced the jury to return a verdict on a lesser charge.5 To extent that it was damaging, the primary harm would have resulted from its effect in impeaching the trial testimony, but it would have been admissible for impeachment in any event, Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. Counsel may well have preferred to have the statement admitted without objection when it was first offered rather than making an objection which, at best,6 could have been only temporarily successful.
48
Moreover, since the police fully complied with Miranda, the deterrent purpose of the Miranda rule is inapplicable to this case. Finally, there is clearly no basis for claiming that the trial violated any standard of fundamental fairness. Accordingly, no matter how the rule is phrased, this case is plainly not one in which a collateral attack should be allowed. I therefore join the opinion of the Court.
49
Mr. Justice WHITE, concurring in the judgment.
50
Under the Court's cases a state conviction will survive challenge in federal habeas corpus not only when there has been a deliberate bypass within the meaning of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), but also when the alleged constitutional error is harmless beyond a reasonable doubt within the intendment of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and similar cases. The petition for habeas corpus of respondent Sykes alleging the violation of his constitutional rights by the admission of certain evidence should be denied if the alleged error is deemed harmless. This would be true even had there been proper objection to the evidence and no procedural default whatsoever by either respondent or his counsel. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972).
51
It is thus of some moment to me that the Court makes its own assessment of the record and itself declares that the evidence of guilt in this case is sufficient to "negate any possibility of actual prejudice resulting to the respondent from the admission of his inculpatory statement." Ante, at 91. This appears to be tantamount to a finding of harmless error under the Harrington standard and is itself sufficient to foreclose the writ and to warrant reversal of the judgment.
52
This would seem to obviate consideration of whether, in the light of Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), and Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), the deliberate-bypass rule of Fay v. Noia, supra, should be further modified with respect to those occasions during trial where the defendant does not comply with the contemporaneous-objection rule when evidence is offered but later seeks federal habeas corpus, claiming that admitting the evidence violated his constitutional rights. The Court nevertheless deals at length with this issue, and it is not inappropriate for me to add the following comments.
53
In terms of the necessity for Sykes to show prejudice, it seems to me that the harmless-error rule provides ample protection to the State's interest. If a constitutional violation has been shown and there has been no deliberate bypass at least as I understand that rule as applied to alleged trial lapses of defense counsel I see little if any warrant, having in mind the State's burden of proof, not to insist upon a showing that the error was harmless beyond a reasonable doubt. As long as there is acceptable cause for the defendant's not objecting to the evidence, there should not be shifted to him the burden of proving specific prejudice to the satisfaction of the habeas corpus judge.
54
With respect to the necessity to show cause for noncompliance with the state rule, I think the deliberate-bypass rule of Fay v. Noia affords adequate protection to the State's interest in insisting that defendants not flout the rules of evidence. The bypass rule, however, as applied to events occurring during trial, cannot always demand that the defendant himself concur in counsel's judgment. Furthermore, if counsel is aware of the facts and the law (here the contemporaneousobjectionand the relevant constitutional objection that might be made) and yet decides not to object because he thinks the objection is unfounded, would damage his client's case, or for any other reason that flows from his exercise of professional judgment, there has been, as I see it, a deliberate bypass. It will not later suffice to allege in federal habeas corpus that counsel was mistaken, unless it is "plain error" appearing on the record or unless the error is sufficiently egregious to demonstrate that the services of counsel were not "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). Other reasons not amounting to deliberate bypass, such as ignorance of the applicable rules, would be sufficient to excuse the failure to object to evidence offered during trial.
55
I do agree that it is the burden of the habeas corpus petitioner to negative deliberate bypass and explain his failure to object. Sykes did neither here, and I therefore concur in the judgment.
56
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
57
Over the course of the last decade, the deliberate-bypass standard announced in Fay v. Noia, 372 U.S. 391, 438-439, 83 S.Ct. 822, 848-849, 9 L.Ed.2d 837 (1963), has played a central role in efforts by the federal judiciary to accommodate the constitutional rights of the individual with the States' interests in the integrity of their judicial procedural regimes. The Court today decides that this standard should no longer apply with respect to procedural defaults occurring during the trial of a criminal defendant. In its place, the Court adopts the two-part "cause"-and-"prejudice" test originally developed in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), and Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). As was true with these earlier cases,1 however, today's decision makes no effort to provide concrete guidance as to the content of those terms. More particularly, left unanswered is the thorny question that must be recognized to be central to a realistic rationalization of this area of law: How should the federal habeas court treat a procedural default in a state court that is attributable purely and simply to the error or negligence of a defendant's trial counsel? Because this key issue remains unresolved, I shall attempt in this opinion a re-examination of the policies2 that should inform and in Fay did inform the selection of the standard governing the availability of federal habeas corpus jurisdiction in the face of an intervening procedural default in the state court.
58
* I begin with the threshold question: What is the meaning and import of a procedural default? If it could be assumed that a procedural default more often than not is the product of a defendant's conscious refusal to abide by the duly constituted, legitimate processes of the state courts, then I might agree that a regime of collateral review weighted in favor of a State's procedural rules would be warranted.3 Fay, however, recognized that such rarely is the case; and therein lies Fay's basic unwillingness to embrace a view of habeas jurisdiction that results in "an airtight system of (procedural) forfeitures." 372 U.S., at 432, 83 S.Ct., at 845.
59
This, of course, is not to deny that there are times when the failure to heed a state procedural requirement stems from an intentional decision to avoid the presentation of constitutional claims to the state forum. Fay was not insensitive to this possibility. Indeed, the very purpose of its bypass test is to detect and enforce such intentional procedural forfeitures of outstanding constitutionally based claims. Fay does so through application of the longstanding rule used to test whether action or inaction on the part of a criminal defendant should be construed as a decision to surrender the assertion of rights secured by the Constitution: To be an effective waiver, there must be "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Incorporating this standard, Fay recognized that if one "understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief . . . ." 372 U.S., at 439, 83 S.Ct., at 849. For this reason, the Court's assertion that it "think(s)" that the Fay rule encourages intentional "sandbagging" on the part of the defense lawyers is without basis, ante, at 89; certainly the Court points to no cases or commentary arising during the past 15 years of actual use of the Fay test to support this criticism. Rather, a consistent reading of case law demonstrates that the bypass formula has provided a workable vehicle for protecting the integrity of state rules in those instances when such protection would be both meaningful and just.4
60
But having created the bypass exception to the availability of collateral review, Fay recognized that intentional, tactical forfeitures are not the norm upon which to build a rational system of federal habeas jurisdiction. In the ordinary case, litigants simply have no incentive to slight the state tribunal, since constitutional adjudication on the state and federal levels are not mutually exclusive. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). Under the regime of collateral review recognized since the days of Brown v. Allen, and enforced by the Fay bypass test, no rational lawyer would risk the "sandbagging" feared by the Court.5 If a constitutional challenge is not properly raised on the state level, the explanation generally will be found elsewhere than in an intentional tactical decision.
61
In brief then, any realistic system of federal habeas corpus jurisdiction must be premised on the reality that the ordinary procedural default is born of the inadvertence, negligence, inexperience, or incompetence of trial counsel. See, e. g., Hill, The Inadequate State Ground, 65 Colum.L.Rev. 943, 997 (1965). The case under consideration today is typical. The Court makes no effort to identify a tactical motive for the failure of Sykes' attorney to challenge the admissibility or reliability of a highly inculpatory statement. While my Brother STEVENS finds a possible tactical advantage, I agree with the Court of Appeals that this reading is most implausible: "We can find no possible advantage which the defense might have gained, or thought they might gain, from the failure to conform with Florida Criminal Procedure Rule 3.190(i)." 528 F.2d 522, 527 (1976). Indeed, there is no basis for inferring that Sykes or his state trial lawyer was even aware of the existence of his claim under the Fifth Amendment; for this not a case where the trial judge expressly drew the attention of the defense to a possible constitutional contention or procedural requirement, e. g., Murch v. Mottram, 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 194 (1972); cf. Henry v. Mississippi, 379 U.S. 443, 448 n.3, 85 S.Ct. 564, 567, 13 L.Ed.2d 408 (1965), or where the defense signals its knowledge of a constitutional claim by abandoning a challenge previously raised, e. g., Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). Rather, any realistic reading of the record demonstrates that we are faced here with a lawyer's simple error.6
62
Fay's answer thus is plain: the bypass test simply refuses to credit what is essentially a lawyer's mistake as a forfeiture of constitutional rights. I persist in the belief that the interests of Sykes and the State of Florida are best rationalized by adherence to this test, and by declining to react to inadvertent defaults through the creation of an "airtight system of forfeitures."
II
63
What are the interests that Sykes can assert in preserving the availability of federal collateral relief in the face of his inadvertent state procedural default? Two are paramount.
64
As is true with any federal habeas applicant, Sykes seeks access to the federal court for the determination of the validity of his federal constitutional claim. Since at least Brown v. Allen, it has been recognized that the "fair effect (of) the habeas corpus jurisdiction as enacted by Congress" entitles a state prisoner to such federal review. 344 U.S., at 500, 73 S.Ct., at 442 (opinion of Frankfurter, J.). While some of my Brethen may feel uncomfortable with this congressional choice of policy, see, e. g., Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Legislative Branch nonetheless remains entirely free to determine that the constitutional rights of an individual subject to state custody, like those of the civil rights plaintiff suing under 42 U.S.C. § 1983, are best preserved by "interpos(ing) the federal courts between the States and the people, as guardians of the people's federal rights . . . ." Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972).
65
With respect to federal habeas corpus jurisdiction, Congress explicitly chose to effectuate the federal court's primary responsibility for preserving federal rights and privileges by authorizing the litigation of constitutional claims and defenses in a district court after the State vindicates its own interest through trial of the substantive criminal offense in the state courts.7 This, of course, was not the only course that Congress might have followed: As an alternative, it might well have decided entirely to circumvent all state procedure through the expansion of existing federal removal statutes such as 28 U.S.C. §§ 1442(a)(1) and 1443, thereby authorizing the pretrial transfer of all state criminal cases to the federal courts whenever federal defenses or claims are in issue.8 But liberal post-trial federal review is the redress that Congress ultimately chose to allow and the consequences of a state procedural default should be evaluated in conformance with this policy choice. Certainly, we can all agree that once a state court has assumed jurisdiction of a criminal case, the integrity of its own process is a matter of legitimate concern. The Fay bypass test, by seeking to discover intentional abuses of the rules of the state forum, is, I believe, compatible with this state institutional interest. See Part III, infra. But whether Fay was correct in penalizing a litigant solely for his intentional forfeitures properly must be read in light of Congress' desired norm of widened post-trial access to the federal courts. If the standard adopted today is later construed to require that the simple mistakes of attorneys are to be treated as binding forfeitures, it would serve to subordinate the fundamental rights contained in our constitutional charter to inadvertent defaults of rules promulgated by state agencies, and would essentially leave it to the States, through the enactment of procedure and the certification of the competence of local attorneys, to determine whether a habeas applicant will be permitted the access to the federal forum that is guaranteed him by Congress.9
66
Thus, I remain concerned that undue deference to local procedure can only serve to undermine the ready access to a federal court to which a state defendant otherwise is entitled. But federal review is not the full measure of Sykes' interest, for there is another of even greater immediacy: assuring that his constitutional claims can be addressed to some court. For the obvious consequence of barring Sykes from the federal courthouse is to insulate Florida's alleged constitutional violation from any and all judicial review because of a lawyer's mistake. From the standpoint of the habeas petitioner, it is a harsh rule indeed that denies him "any review at all where the state has granted none," Brown v. Allen, 344 U.S., at 552, 73 S.Ct., at 433 (Black, J., dissenting) particularly when he would have enjoyed both state and federal consideration had his attorney not erred.
67
Fay's answer to Sykes' predicament, measuring the existence and extent of his procedural waiver by the Zerbst standard is, I submit, a realistic one. The Fifth Amendment assures that no person "shall be compelled in any criminal case to be a witness against himself . . . ." A defendant like Sykes can forgo this protection in two ways: He may decide to waive his substantive self-incrimination right at the point that he gives an inculpatory statement to the police authorities, Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966), or he and his attorney may choose not to challenge the admissibility of an incriminating statement when such a challenge would be effective under state trial procedure. See Estelle v. Williams, 425 U.S. 501, 524, 96 S.Ct. 1691, 1702, 48 L.Ed.2d 126 (1976). (dissenting opinion). With few exceptions in the past 40 years, e. g., Estelle v. Williams, supra; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), this Court has required that the substantive waiver, to be valid, must be a knowing and intelligent one. See, e. g., Brewer v. Williams, 430 U.S., at 404, 97 S.Ct., at 1242; Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966); Escobedo v. Williams, 378 U.S. 478, 490 n.14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977 (1964); Green v. United States, 355 U.S. 184, 191-192, 78 S.Ct. 221, 225-226, 2 L.Ed.2d 199 (1957); Smith v. United States, 337 U.S. 137, 149-150, 69 S.Ct. 1000, 1006-1007, 93 L.Ed. 1264 (1949); Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942). It has long been established that such is the case for the waiver of the protections of the Miranda rule. See 384 U.S., at 475, 86 S.Ct. at 1628; Schneckloth v. Bustamonte, supra, 412 U.S., at 240, 93 S.Ct., at 2054. Fay simply evaluates the procedural waiver of Sykes' Fifth Amendment rights by the same standard.
68
From the standpoint of the habeas petitioner this symmetry is readily understandable. To him the inevitable consequence of either type of forfeiture be it substantive or procedural is that the protection of the Fifth Amendment is lost and his own words are introduced at trial to the prejudice of his defense. The defendant's vital interest in preserving his Fifth Amendment privilege entitles him to informed and intelligent consideration of any decision leading to its forfeiture. It may be, of course, that the State's countervailing institutional interests are more compelling in the case of eliciting a procedural default, thereby justifying a relaxation of the Zerbst standard. I discuss this possibility in greater detail in Part III, infra. It is sufficient for present purposes, however, that there is no reason for believing that this necessarily is true. That the State legitimately desires to preserve an orderly and efficient judicial process is undeniable. But similar interest of efficiency and the like also can be identified with respect to other state institutions, such as its law enforcement agencies. Yet, as was only recently reconfirmed, we would not permit and have not permitted the state police to enhance the orderliness and efficiency of their law enforcement activities by embarking on a campaign of acquiring inadvertent waivers of important constitutional rights. Brewer v. Williams, supra, 430 U.S., at 401-406, 97 S.Ct., at 1241-1243; see generally Francis v. Henderson, 425 U.S., at 548-549, n.2, 96 S.Ct., at 1714 (dissenting opinion).
69
A procedural default should be treated accordingly. Indeed, a recent development in the law of habeas corpus suggests that adherence to the deliberate-bypass test may be more easily justified today than it was when Fay was decided. It also suggests that the "prejudice" prong of the Court's new test may prove to be a redundancy. Last Term the Court ruled that alleged violations of the Fourth Amendment in most circumstances no longer will be cognizable in habeas corpus. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). While, for me, the principle that generated this conclusion was not readily apparent, I expressed my concern that the Stone decision contains the seeds for the exclusion from collateral review of a variety of constitutional rights that my Brethren somehow deem to be unimportant perhaps those that they are able to conclude are not "guilt-related." See id., at 517-518, 96 S.Ct., at 3062-3063 (dissenting opinion). If this trail is to be followed, it would be quite unthinkable that an unintentional procedural default should be allowed to stand in the way of vindication of constitutional rights bearing upon the guilt or innocence of a defendant. Indeed, if as has been argued, a key to decision in this area turns upon a comparison of the importance of the constitutional right at stake with the state procedural rule, Sandalow, Henry v. Mississippi and the Adequate State Ground: Proposals for a Revised Doctrine, 1965 Sup.Ct.Rev. 187, 236-237, then the Court's threshold effort to identify those rights of sufficient importance to be litigated collaterally should largely predetermine the outcome of this balance.
70
In sum, I believe that Fay's commitment to enforcing intentional but not inadvertent procedural defaults offers a realistic measure of protection for the habeas corpus petitioner seeking federal review of federal claims that were not litigated before the State. The threatened creation of a more "airtight system of forfeitures" would effectively deprive habeas petitioners of the opportunity for litigating their constitutional claims before any forum and would disparage the paramount importance of constitutional rights in our system of government. Such a restriction of habeas corpus jurisdiction should be countenanced, I submit, only if it fairly can be concluded that Fay's focus on knowing and voluntary forfeitures unduly interferes with the legitimate interests of state courts or institutions. The majority offers no suggestion that actual experience has shown that Fay's bypass test can be criticized on this score. And, as I now hope to demonstrate, any such criticism would be unfounded.
III
71
A regime of federal habeas corpus jurisdiction that permits the reopening of state procedural defaults does not invalidate any state procedural rule as such;10 Florida's courts remain entirely free to enforce their own rules as they choose, and to deny any and all state rights and remedies to a defendant who fails to comply with applicable state procedure. The relevant inquiry is whether more is required specifically, whether the fulfillment of important interests of the State necessitates that federal courts be called upon to impose additional sanctions for inadvertent noncompliance with state procedural requirements such as the contemporaneous-objection rule involved here.
72
Florida, of course, can point to a variety of legitimate interests in seeking allegiance to its reasonable procedural requirements, the contemporaneous-objection rule included. See Henry v. Mississippi, 379 U.S., at 448, 85 S.Ct., at 567. As Fay recognized, a trial, like any organized activity, must conform to coherent process, and "there must be sanctions for the flouting of such procedure." 372 U.S., at 431, 83 S.Ct., at 845. The strict enforcement of procedural defaults, therefore, may be seen as a means of deterring any tendency on the part of the defense to slight the state forum, to deny state judges their due opportunity for playing a meaningful role in the evolving task of constitutional adjudication, or to mock the needed finality of criminal trials. All of these interests are referred to by the Court in various forms.11
73
The question remains, however, whether any of these policies or interests are efficiently and fairly served by enforcing both intentional and inadvertent defaults pursuant to the identical stringent standard. I remain convinced that when one pierces the surface justifications for a harsher rule posited by the Court, no standard stricter than Fay's deliberate-bypass test is realistically defensible.
74
Punishing a lawyer's unintentional errors by closing the federal courthouse door to his client is both a senseless and misdirected method of deterring the slighting of state rules. It is senseless because unplanned and unintentional action of any kind generally is not subject to deterrence; and, to the extent that it is hoped that a threatened sanction addressed to the defense will induce greater care and caution on the part of trial lawyers, thereby forestalling negligent conduct or error, the potential loss of all valuable state remedies would be sufficient to this end.12 And it is a misdirected sanction because even if the penalization of incompetence or carelessness will encourage more thorough legal training and trial preparation, the habeas applicant, as opposed to his lawyer, hardly is the proper recipient of such a penalty. Especially with fundamental constitutional rights at stake, no fictional relationship of principal-agent or the like can justify holding the criminal defendant accountable for the naked errors of his attorney.13 This is especially true when so many indigent defendants are without any realistic choice in selecting who ultimately represents them at trial.14 Indeed, if responsibility for error must be apportioned between the parties, it is the State, through its attorney's admissions and certification policies, that is more fairly held to blame for the fact that practicing lawyers too often are ill-prepared or ill-equipped to act carefully and knowledgeably when faced with decisions governed by state procedural requirements.
75
Hence, while I can well agree that the proper functioning of our system of criminal justice, both federal and state, necessarily places heavy reliance on the professionalism and judgment of trial attorneys, I cannot accept a system that ascribes the absolute forfeiture of an individual's constitutional claims to situations where his lawyer manifestly exercises no professional judgment at all where carelessness, mistake, or ignorance is the explanation for a procedural default. Of course, it is regrettable that certain errors that might have been cured earlier had trial counsel acted expeditiously must be corrected collaterally and belatedly. I can understand the Court's wistfully wishing for the day when the trial was the sole, binding and final "event" of the adversarial process although I hesitate to agree that in the eyes of the criminal defendant it has ever ceased being the "main" one, ante, at 90. But it should be plain that in the real world, the interest in finality is repeatedly compromised in numerous ways that arise with far greater frequency than do procedural defaults. The federal criminal system, to take one example, expressly disapproves of interlocutory review in the generality of cases even though such a policy would foster finality by permitting the authoritative resolution of all legal and constitutional issues prior to the convening of the "main event." See generally Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Instead, it relies on the belated correction of error, through appeal and collateral review, to ensure the fairness and legitimacy of the criminal sanction. Indeed, the very existence of the well-established right collaterally to reopen issues previously litigated before the state courts, Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), represents a congressional policy choice that is inconsistent with notions of strict finality and probably more so than authorizing the litigation of issues that, due to inadvertence, were never addressed to any court. Ultimately, all of these limitations on the finality of criminal convictions emerge from the tension between justice and efficiency in a judicial system that hopes to remain true to its principles and ideals. Reasonable people may disagree on how best to resolve these tensions. But the solution that today's decision risks embracing seems to me the most unfair of all: the denial of any judicial consideration of the constitutional claims of a criminal defendant because of errors made by his attorney which lie outside the power of the habeas petitioner to prevent or deter and for which, under no view of morality or ethics, can he be held responsible.
76
In short, I believe that the demands of our criminal justice system warrant visiting the mistakes of a trial attorney on the head of a habeas corpus applicant only when we are convinced that the lawyer actually exercised his expertise and judgment in his client's service, and with his client's knowing and intelligent participation where possible. This, of course, is the precise system of habeas review established by Fay v. Noia.
IV
77
Perhaps the primary virtue of Fay is that the bypass test at least yields a coherent yardstick for federal district courts in rationalizing their power of collateral review. See n.4, supra. In contrast, although some four years have passed since its introduction in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), the only thing clear about the Court's "cause"-and-"prejudice" standard is that it exhibits the notable tendency of keeping prisoners in jail without addressing their constitutional complaints. Hence, as of today, all we know of the "cause" standard15 is its requirement that habeas applicants bear an undefined burden of explanation for the failure to obey the state rule, ante, at 91. Left unresolved is whether a habeas petitioner like Sykes can adequately discharge this burden by offering the commonplace and truthful explanation for his default: attorney ignorance or error beyond the client's control. The "prejudice" inquiry, meanwhile, appears to bear a strong resemblance to harmless-error doctrine. Compare ante, at 91, with Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). I disagree with the Court's appraisal of the harmlessness of the admission of respondent's confession, but if this is what is meant by prejudice, respondent's constitutional contentions could be as quickly and easily disposed of in this regard by permitting federal courts to reach the merits of his complaint. In the absence of a persuasive alternative formulation to the bypass test, I would simply affirm the judgment of the Court of Appeals and allow Sykes his day in court on the ground that the failure of timely objection in this instance was not a tactical or deliberate decision but stemmed from a lawyer's error that should not be permitted to bind his client.
78
One final consideration deserves mention. Although the standards recently have been relaxed in various jurisdictions,16 it is accurate to assert that most courts, this one included,17 traditionally have resisted any realistic inquiry into the competency of trial counsel. There is nothing unreasonable, however, in adhering to the proposition that it is the responsibility of a trial lawyer who takes on the defense of another to be aware of his client's basic legal rights and of the legitimate rules of the forum in which he practices his profession.18 If he should unreasonably permit such rules to bar the assertion of the colorable constitutional claims of his client, then his conduct may well fall below the level of competence that can fairly be expected of him.19 For almost 40 years it has been established that inadequacy of counsel undercuts the very competence and jurisdiction of the trial court and is always open to collateral review. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).20 Obviously, as a practical matter, a trial counsel cannot procedurally waive his own inadequacy. If the scope of habeas jurisdiction previously governed by Fay v. Noia is to be redefined so as to enforce the errors and neglect of lawyers with unnecessary and unjust rigor, the time may come when conscientious and fairminded federal and state courts, in adhering to the teaching of Johnson v. Zerbst, will have to reconsider whether they can continue to indulge the comfortable fiction that all lawyers are skilled or even competent craftsmen in representing the fundamental rights of their clients.
1
No written statement was offered into evidence because Sykes refused to sign the statement once it was typed up. Tr. 35.
2
At one point early in the trial defense counsel did object to admission of any statements made by respondent to the police, on the basis that the basic elements of an offense had not yet been established. The judge ruled that the evidence could be admitted "subject to (the crime's) being properly established later." Id., at 16.
3
In a subsequent state habeas action, the Florida District Court of Appeals, Second District, stated that the admissibility of the postarrest statements had been raised and decided on direct appeal. Sykes v. State, 275 So.2d 24 (1973). The United States District Court in the present action explicitly found to the contrary, App. to Pet. for Cert. A-21, and respondent does not challenge that finding.
4
Respondent expressly waived "any contention or allegation as regards ineffective assistance of counsel" at his trial. App. A-47. He advanced an argument challenging the jury instructions relating to justifiable homicide, but the District Court concluded in a single paragraph that the instructions had been adequate.
5
Rule 3.190(i):
"Motion to Suppress a Confession or Admissions Illegally Obtained.
"(1) Grounds. Upon motion of the defendant or upon its own motion, the court shall suppress any confession or admission obtained illegally from the defendant.
"(2) Time for Filing. The motion to suppress shall be made prior to trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial.
"(3) Hearing. The court shall receive evidence on any issue of fact necessary to be decided in order to rule on the motion."
6
For divergent discussions of the historic role of federal habeas corpus, compare: Hart, The Supreme Court, 1958 Term, Foreward: The Time Chart of the Justices, 73 Harv.L.Rev. 84 (1959); Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv.L.Rev. 1315 (1961); Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 Utah L.Rev. 423 (1961); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 468 (1963); Oaks, Legal History in the High Court Habeas Corpus, 64 Mich.L.Rev. 451 (1966); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 170-171 (1970); and Note, Developments in the Law Federal Habeas Corpus, 83 Harv.L.Rev. 1038 (1970).
7
28 U.S.C. § 2254:
"(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."
8
Not long after Fay, the Court in Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), considered the question of the adequacy of a state procedural ground to bar direct Supreme Court review, and concluded that failure to comply with a state contemporaneous-objection rule applying to the admission of evidence did not necessarily foreclose consideration of the underlying Fourth Amendment claim. The state procedural ground would be "adequate," and thus dispositive of the case on direct appeal to the United States Supreme Court, only where "the State's insistence on compliance with its procedural rule serves a legitimate state interest." Id., at 447, 85 S.Ct. at 567. Because, the Court reasoned, the purposes of the contemporaneous-objection rule were largely served by the motion for a directed verdict at the close of the State's case, enforcement of the contemporaneous-objection rule was less than essential and therefore lacking in the necessary "legitimacy" to make it an adequate state ground.
Rather than searching the merits of the constitutional claim, though, the Court remanded for determination whether a separate adequate state ground might exist that is, whether petitioner had knowingly and deliberately waived his right to object at trial for tactical or other reasons. This was the same type of waiver which the Court in Fay had said must be demonstrated in order to bar review on state procedural grounds in a federal habeas proceeding.
9
See n. 5, supra.
10
In Pinto v. Pierce, 389 U.S. 31, 32, 88 S.Ct. 192, 193, 19 L.Ed.2d 31 (1967), the Court stated:
"Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), held that a defendant's constitutional rights are violated when his challenged confession is introduced without a determination by the trial judge of its voluntariness after an adequate hearing. . . ."
In Lego v. Twomey, 404 U.S. 477, 478, 92 S.Ct. 619, 621, 30 L.Ed.2d 618 (1972), we summarized the Jackson holding as conferring the right to a voluntariness hearing on "a criminal defendant who challenges the voluntariness of a confession" sought to be used against him at trial.
11
Petitioner does not argue, and we do not pause to consider, whether a bare allegation of a Miranda violation, without accompanying assertions going to the actual voluntariness or reliability of the confession, is a proper subject for consideration on federal habeas review, where there has been a full and fair opportunity to raise the argument in the state proceeding. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). We do not address the merits of that question because of our resolution of the case on alternative grounds.
12
We have no occasion today to consider the Fay rule as applied to the facts there confronting the Court. Whether the Francis rule should preclude federal habeas review of claims not made in accordance with state procedure where the criminal defendant has surrendered, other than for reasons of tactical advantage, the right to have all of his claims of trial error considered by a state appellate court, we leave for another day.
The Court in Fay stated its knowing-and-deliberate-waiver rule in language which applied not only to the waiver of the right to appeal, but to failures to raise individual substantive objections in the state trial. Then, with a single sentence in a footnote, the Court swept aside all decisions of this Court "to the extent that (they) may be read to suggest a standard of discretion in federal habeas corpus proceedings different from what we lay down today . . . ." 372 U.S., at 439 n. 44, 83 S.Ct., at 849. We do not choose to paint with a similarly broad brush here.
13
Responding to concerns such as these, Mr. Justice Powell's concurring opinion last Term in Estelle v. Williams, 425 U.S. 501, 513, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126 (1976), proposed an "inexcusable procedural default" test to bar the availability of federal habeas review where the substantive right claimed could have been safeguarded if the objection had been raised in a timely manner at trial.
14
In Henry v. Mississippi, 379 U.S., at 451, 85 S.Ct., at 569, the Court noted that decisions of counsel relating to trial strategy, even when made without the consultation of the defendant, would bar direct federal review of claims thereby forgone, except where "the circumstances are exceptional."
Last Term in Estelle v. Williams, supra, the Court reiterated the burden on a defendant to be bound by the trial judgments of his lawyer.
"Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney." 425 U.S., at 512, 96 S.Ct., at 1697.
1
Only such basic decisions as whether to plead guilty, waive a jury, or testify in one's own behalf are ultimately for the accused to make. See ABA Project on Standards for Criminal Justice, The Prosecution Function and Defense Function § 5.2, pp. 237-238 (App.Draft 1971).
2
One is left to wonder what use there would have been to an objection to a confession corroborated by witnesses who heard Sykes freely admit the killing at the scene within minutes after the shooting.
1
The suggestion in Fay, 372 U.S., at 439, 83 S.Ct., at 849, that the decision must be made personally by the defendant has not fared well, see United States ex rel. Cruz v. LaVallee, 448 F.2d 671, 679 (CA2 1971); United States ex rel. Green v. Rundle, 452 F.2d 232, 236 (CA3 1971), although a decision by counsel may not be binding if made over the objection of the defendant, Paine v. McCarthy, 527 F.2d 173, 175-176 (CA9 1975). Courts have generally found a "deliberate bypass" where counsel could reasonably have decided not to object, United States ex rel. Terry v. Henderson, 462 F.2d 1125, 1129 (CA2 1972); Whitney v. United States, 513 F.2d 326, 329 (CA8 1974); United States ex rel. Broaddus v. Rundle, 429 F.2d 791, 795 (CA3 1970), but they have not found a bypass when they consider the right "deeply embedded" in the Constitution, Frazier v. Roberts, 441 F.2d 1224, 1230 (CA8 1971), or when the procedural default was not substantial, Minor v. Black, 527 F.2d 1, 5 n. 3 (CA6 1975); Black v. Beto, 382 F.2d 758, 760 (CA5 1967). Sometimes, even a deliberate choice by trial counsel has been held not to be a "deliberate bypass" when the result would be unjust, Moreno v. Beto, 415 F.2d 154 (CA5 1969). In short, the actual disposition of these cases seems to rest on the court's perception of the totality of the circumstances, rather than on mechanical application of the "deliberate bypass" test.
2
"If counsel is to have the responsibility for conducting a contested criminal trial, quite obviously he must have the authority to make important tactical decisions promptly as a trial progresses. The very reasons why counsel's participation is of such critical importance in assuring a fair trial for the defendant, see Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158, make it inappropriate to require that his tactical decisions always be personally approved, or even thoroughly understood, by his client. Unquestionably, assuming the lawyer's competence, the client must accept the consequences of his trial strategy. A rule which would require the client's participation in every decision to object, or not to object, to proffered evidence would make a shambles of orderly procedure." United States ex rel. Allum v. Twomey, 484 F.2d 740, 744-745 (CA7 1973).
3
The test announced in Fay was not actually applied in that case. The Court held that habeas relief was available notwithstanding the client's participation in the waiver decision, and notwithstanding the fact that the decision was made on a tactical basis. The client apparently feared that the State might be able to convict him even without the use of his confession, and that he might be sentenced to death if reconvicted. See Fay, supra, at 397 n. 3, 440, 83 S.Ct., at 826, 849.
4
As Fay v. Noia, supra, at 438, 83 S.Ct., at 848, makes clear, we are concerned here with a matter of equitable discretion rather than a question of statutory authority; and equity has always been characterized by its flexibility and regard for the necessities of each case, cf. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554.
5
According to the statement the respondent made to the police, the victim came into his trailer, picked up his shotgun, and played with it; they quarreled and the victim cut the respondent's hand with a knife; then the victim left the trailer and made an insulting gesture, at which time the respondent shot him. Other evidence established that respondent was quite drunk at the time. The primary difference between this and the respondent's trial testimony was that at trial the respondent testified that the victim had threatened him before leaving the trailer, and had turned and started toward the respondent just before the shooting.
6
The objection was weak since the police officers gave the defendant the appropriate warnings. His claim that he was too intoxicated to understand the warnings is not only implausible, but also somewhat inconsistent with any attempt to give credibility to his trial testimony, which necessarily required recollection of the circumstances surrounding the shooting.
1
The Court began its retreat from the deliberate-bypass standard of Fay in Davis v. United States, where a congressional intent to restrict the bypass formulation with respect to collateral review under 28 U.S.C. § 2255 was found to inhere in Fed.Rule Crim.Proc., 12(b)(2). By relying upon Congress' purported intent, Davis managed to evade any consideration of the justifications and any shortcomings of the bypass test. Subsequently, in Francis v. Henderson, a controlling congressional expression of intent no longer was available, and the Court therefore employed the shibboleth of "considerations of comity and federalism" to justify application of Davis to a § 2254 proceeding. 425 U.S., at 541, 96 S.Ct., at 1711. Again, any coherent analysis of the bypass standard or the waivability of constitutional rights was avoided as it was that same day in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), which proceeded to find a surrender of a constitutional right in an opinion that was simply oblivious to some 40 years of existing case law. See infra, at 108-109. Thus, while today's opinion follows from Davis, Francis, and Estelle, the entire edifice is a mere house of cards whose foundation has escaped any systematic inspection.
2
I use the term "policies" advisedly, for it is important to recognize the area of my disagreement with the Court. This Court has never taken issue with the foundation principle established by Fay v. Noia that in considering a petition for the writ of habeas corpus, federal courts possess the power to look beyond a state procedural forfeiture in order to entertain the contention that a defendant's constitutional rights have been abridged. 372 U.S., at 398-399, 83 S.Ct., at 826-827. Indeed, only last Term, the Court reiterated: "There can be no question of a federal district court's power to entertain an application for a writ of habeas corpus in a case such as this." Francis v. Henderson, 425 U.S., at 538, 96 S.Ct., at 1710. Today's decision reconfirms this federal power by authorizing federal intervention under the "cause"-and-"prejudice" test. Were such power unavailable, federal courts would be bound by Fla.Rule Crim.Proc. 3.190, which contains no explicit provision for relief from procedural defaults. Our disagreement, therefore, centers upon the standard that should govern a federal district court in the exercise of this power to adjudicate the constitutional claims of a state prisoner which, in turn, depends upon an evaluation of the competing policies and values served by collateral review weighted against those furthered through strict deference to a State's procedural rules.
It is worth noting that because we deal with the standards governing the exercise of the conceded power of federal habeas courts to excuse a state procedural default, Congress, as the primary expositor of federal-court jurisdiction, remains free to undo the potential restrictiveness of today's decision by expressly defining the standard of intervention under 28 U.S.C. § 2254. Cf. Davis v. United States, 411 U.S., at 241-242, 93 S.Ct., at 1582.
3
Even this concession to procedure would, in my view, be unnecessary so long as the habeas court is capable of distinguishing between intentional and inadvertent defaults with acceptable accuracy as I believe it can. See n.4, infra.
4
Over the years this Court has without notable difficulty applied the Fay rule to a variety of contexts. E. g., Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Humphrey v. Cady, 405 U.S. 504, 517, 92 S.Ct. 1048, 1056, 31 L.Ed.2d 394 (1972); Anderson v. Nelson, 390 U.S. 523, 525, 88 S.Ct. 1133, 1135, 20 L.Ed.2d 81 (1968); Warden v. Hayden, 387 U.S. 294, 297 n.3, 87 S.Ct. 1642, 1645, 18 L.Ed.2d 782 (1967); cf. Chambers v. Mississippi, 410 U.S. 284, 290 n.3, 93 S.Ct. 1038, 1043, 35 L.Ed.2d 297 (1973). Similarly, the standard has been capable of intelligent application by the lower federal courts in order to bar the collateral reconsideration of tactical decisions by the defense, e. g., United States ex rel. Green v. Rundle, 452 F.2d 232, 236 (CA3 1971) (counsel concedes tactical decision); Whitney v. United States, 513 F.2d 326, 329 (CA8 1974) (counsel forgoes challenge to seized evidence in order to avoid concession of any possessory interest in searched premises), while otherwise permitting federal review, Henderson v. Kibbe, 534 F.2d 493, 496-497 (CA2 1976), rev'd on other grounds, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Paine v. McCarthy, 527 F.2d 173 (CA9 1975). And in cases similar to the present one where Fifth Amendment violations were in issue, Fay has afforded a meaningful standard governing the scope of federal collateral review. Compare United States ex rel. Terry v. Henderson, 462 F.2d 1125, 1129 (CA2 1972) (bypass found where counsel relied on confession to rebut premeditation in murder trial); and United States ex rel. Cruz v. LaVallee, 448 F.2d 671, 679 (CA2 1971) (bypass found where trial strategy called for confessing to killing but arguing that mitigating circumstances exist), with Moreno v. Beto, 415 F.2d 154 (CA5 1969) (defense not held to bypass where defense counsel deliberately chose not to raise and submit voluntariness issue to jury due to unwillingness to expose client to unconstitutional procedure).
5
In brief, the defense lawyer would face two options: (1) He could elect to present his constitutional claims to the state courts in a proper fashion. If the state trial court is persuaded that a constitutional breach has occurred, the remedies dictated by the Constitution would be imposed, the defense would be bolstered, and the prosecution accordingly weakened, perhaps precluded altogether. If the state court rejects the properly tendered claims, the defense has lost nothing: Appellate review before the state courts and federal habeas consideration are preserved. (2) He could elect to "sandbag." This presumably means, first, that he would hold back the presentation of his constitutional claim to the trial court, thereby increasing the likelihood of a conviction since the prosecution would be able to present evidence that, while arguably constitutionally deficient, may be highly prejudicial to the defense. Second, he would thereby have forfeited all state review and remedies with respect to these claims (subject to whatever "plain error" rule is available). Third, to carry out his scheme he would now be compelled to deceive the federal habeas court and to convince the judge that he did not "deliberately bypass" the state procedures. If he loses on this gamble, all federal review would be barred, and his "sandbagging" would have resulted in nothing but the forfeiture of all judicial review of his client's claims. The Court, without substantiation, apparently believes that a meaningful number of lawyers are induced into option 2 by Fay. I do not. That belief simply offends common sense.
6
The likelihood that we are presented with a lawyer's simple mistake is not answered by respondent's stipulation to his trial counsel's competency. At oral argument it was made clear that Sykes so stipulated solely because of the position expressed by the habeas court that a challenge to his prior legal representation would require the return to the state courts and the further exhaustion of state remedies, a detour that respondent insisted on avoiding. Tr. of Oral Arg. 49. Furthermore, in light of the prevailing standards, or lack of standards, for judging the competency of trial counsel, see infra, at 117, it is perfectly consistent for even a lawyer who commits a grievous error whether due to negligence or ignorance to be deemed to have provided competent representation.
7
Congress' grant of post-trial access to the federal courts was reconfirmed by its modification of 28 U.S.C. § 2254 following our decisions in Fay and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). This legislative amendment of the habeas statute essentially embraced the relitigation standards outlined in Townsend without altering the broad framework for collateral review contained in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), Fay, and like cases. See, e. g., Stone v. Powell, 428 U.S. 465, 528-529, 96 S.Ct. 3037, 3067-3068, 49 L.Ed.2d 1067 (1976) (BRENNAN, J., dissenting).
8
Whether in a civil or criminal case, Congress' broad authority to allocate federal issues for decision in its choice of forum is clear. See, e. g., Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648 (1880); Greenwood v. Peacock, 384 U.S. 808, 833, 86 S.Ct. 1800, 1815, 16 L.Ed.2d 944 (1966): "We have no doubt that Congress, if it chose, could provide for exactly such a system. We may assume that Congress has constitutional power to provide that all federal issues be tried in the federal courts, that all be tried in the courts of the States, or that jurisdiction of such issues be shared. And in the exercise of that power, we may assume that Congress is constitutionally fully free to establish the conditions under which civil or criminal proceedings involving federal issues may be removed from one court to another." The same day as Greenwood the Court applied § 1443(1) as authorizing (subject to further factfinding) the removal of a state trespass prosecution to the United States District Court. Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966). Once a criminal case is thus removed to the federal court, the State no longer can assert any interest in having trial of the state substantive offense governed by the State's choice of procedure, for this Court has long provided that federal procedure then obtains. Tennessee v. Davis, supra, 100 U.S. at 272, 25 L.Ed. 648. In this sense, the prevailing system of post-trial federal collateral review is more generous to state procedure than would be required, and, some would say, desired. See generally Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U.Pa.L.Rev. 793 (1965).
9
Of course, even under the Court's new standard, traditional principles continue to apply, and the federal judiciary is not bound by state rules of procedure that are unreasonable on their face, or that are either unreasonably or inconsistently applied. See, e. g., Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161 (1955).
10
This is not to suggest that the availability of collateral review has no bearing on the States' selection and enforcement of procedural requirements. On the contrary, to the extent that a State desires to have input into the process of developing federal law, and seeks to guarantee its primary factfinding role as authorized by § 2254 and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the existence of broad federal habeas power will tend to encourage the liberalizing and streamlining of state rules that otherwise might serve to bar such state participation. From every perspective, I would suppose that any such effect of Fay would be considered a salutary one, see, e. g., Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv.L.Rev. 321, 348 (1973), although the Court implies the contrary, ante, at 89-90.
11
In my view, the strongest plausible argument for strict enforcement of a contemporaneous-objection rule is one that the Court barely relies on at all: the possibility that the failure of timely objection to the admissibility of evidence may foreclose the making of a fresh record and thereby prejudice the prosecution in later litigation involving that evidence. There may be force to this contention, but it rests on the premise that the State in fact has suffered actual prejudice because of a procedural lapse. Florida demonstrates no such injury here. Sykes' trial occurred in June 1972. He subsequently filed his petition for a writ of habeas corpus in April 1973, thereby apprising Florida of his constitutional objection. There is no basis in the record for concluding that lost evidence or other form of prejudice, see, e. g., Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), arising during this 101/2-month interval effectively forestalls Florida's defense of the Fifth Amendment claim or the reprosecution of Sykes should his constitutional challenge prevail.
12
Under § 2254, the availability of federal review is not limited or dependent on forgoing litigation in the state courts. Because the state forum thus affords purely an additional measure of protection, Fay recognized: "A man under conviction for crime has an obvious inducement to do his very best to keep his state remedies open, and not stake his all on the outcome of a federal habeas proceeding which, in many respects, may be less advantageous to him than a state court proceeding. . . . And if because of inadvertence or neglect he runs afoul of a state procedural requirement, and thereby forfeits his state remedies, appellate and collateral, as well as direct review thereof in this Court, those consequences should be sufficient to vindicate the State's valid interest in orderly procedure." 372 U.S., at 433, 83 S.Ct., at 846. See Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv.L.Rev. 1315, 1351 (1961). This Court's recent decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), seems to subscribe to a similar view that deterrence is not meaningfully furthered by adopting an overkill of sanctions. There the Court reasoned that police misconduct under the Fourth Amendment will be deterred by state review of any search-and-seizure claim, and that further federal-court consideration would have but an "incremental" and "isolated" deterrent impact. Id., at 494, 96 S.Ct., at 3052. Assuming that criminal defendants and lawyers are no less rational than police, they should be deterred from risking the unnecessary forfeiture of all state remedies and the initial opportunity for judicial victory before the state courts.
13
Traditionally, the rationale for binding a criminal defendant by his attorney's mistakes has rested on notions akin to agency law. See, e. g., Comment, Criminal Waiver: The Requirements of Personal Participation, Competence and Legitimate State Interest, 54 Calif.L.Rev. 1262, 1278-1281 (1966). With respect to ordinary commercial matters, the common law established and recognized principal-agent relationships for the protection of innocent third parties who deal with the latter. In the context of a criminal trial, this analogy is not apt, for the State, primarily in control of the criminal process and responsible for qualifying and assigning attorneys to represent the accused, is not a wholly innocent bystander. Consequently, the dominant relationship of the trial counsel with respect to his client more recently has been found simply to inhere in "our legal system" or "our adversary system." Estelle v. Williams, 425 U.S., at 512, 96 S.Ct., at 1697. There is undoubted truth in this; obviously "our legal system" presupposes that attorneys will function competently, that their clients cannot participate in all decisions, Henry v. Mississippi, 379 U.S., at 451, 85 S.Ct., at 569, and that the trial of a criminal defendant will not inevitably be followed by a trial of his attorney's performance. Fay reacts to this institutional demand by enforcing both action and inaction of attorneys even if they prove to backfire in actual practice provided that it is found that the lawyer was aware of his client's rights and knowingly applied his professional judgment in his client's behalf. In brief, the bypass test rightfully defers to the attorney's "vast array of trial decisions, strategic and tactical," Estelle v. Williams, supra, 425 U.S., at 512, 96 S.Ct., at 1697, but not to sheer inadvertence where no decision was made.
14
See generally Tague, An Indigent's Right to the Attorney of His Choice, 27 Stan.L.Rev. 73 (1974).
15
The earlier cases of Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), and Francis v. Henderson, 425 U.S., at 542, 96 S.Ct., at 1712, similarly are not instructive in defining "cause," since both decisions appear to have disposed of the habeas application primarily on the "prejudice" aspect of the test.
16
A majority of courts have now passed beyond the standard of attorney competence embodied in the so-called "mockery" test, which abdicates any judicial supervision over attorney performance so long as the attorney does not make a farce of the trial. See, e. g., United States v. Katz, 425 F.2d 928 (CA2 1970) (attorney who was prone to fall asleep during trial held to have provided competent representation). The new emerging rule essentially requires that the attorney provide assistance within a reasonable range of professional competence, see United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973); United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (CA7 1975).
17
See, e. g., Chambers v. Maroney, 399 U.S. 42, 55-60, 90 S.Ct. 1975, 1983-1985, 26 L.Ed.2d 419 (1970) (Harlan, J., dissenting). Recently, this Court, however, has made clear that attorneys are expected to perform "within the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970); Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1607, 36 L.Ed.2d 235 (1973).
18
Indeed, at least this level of knowledge and proficiency would seem to be a prerequisite for the provision of "effective and substantial aid" as guaranteed by the Sixth Amendment. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932).
19
"Counsel's failure to evaluate properly facts giving rise to a constitutional claim, or his failure properly to inform himself of facts that would have shown the existence of a constitutional claim, might in particular fact situations meet this standard of proof (of incompetent counsel)." Tollett v. Henderson, supra, 411 U.S., at 266-267, 93 S.Ct., at 1608.
20
Zerbst dealt specifically with an instance where trial counsel was altogether lacking, but "(i)t has long been recognized that the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, supra, 397 U.S., at 771 n.14, 90 S.Ct., at 1449 n.14 (citations omitted).
| 01
|
433 U.S. 165
97 S.Ct. 2616
53 L.Ed.2d 667
PUYALLUP TRIBE, INC. and Ramona Bennett, Petitioners,v.DEPARTMENT OF GAME OF the STATE OF WASHINGTON et al.
No. 76-423.
Argued April 18, 1977.
Decided June 23, 1977.
Syllabus
After protracted litigation the Washington Superior Court entered a judgment against petitioner Puyallup Tribe reciting that the court possessed jurisdiction to regulate the Tribe's fishing activities both off and on its reservation, and limiting the number of steelhead trout that tribal members might net in the Puyallup River each year, and the Tribe was directed to file a list of members authorized to exercise treaty fishing rights, and to report to respondent Washington Department of Game and to the court the number of steelhead caught by the treaty fishermen each week. The Washington Supreme Court affirmed, with a slight modification. The Tribe contends that the doctrine of sovereign immunity requires that the judgment be vacated; that the state courts have no jurisdiction to regulate fishing activities on the reservation; and that, in any event, the limitation on the steelhead catch is not a necessary conservation measure. Held:
1. Absent an effective waiver or consent, a state court may not exercise jurisdiction over a recognized Indian tribe, but tribal sovereign immunity here does not impair the Superior Court's authority to adjudicate the rights of individual tribal members over whom it properly obtained personal jurisdiction, Puyallup Tribe v. Washington Game Dept., 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (Puyallup I ), and hence only those portions of the judgment that involve relief against the Tribe itself must be vacated in order to honor the Tribe's valid claim of immunity. Pp. 168-173.
2. Neither the Tribe nor its members have an exclusive right, under the Treaty of Medicine Creek, to take steelhead passing through the reservation. It not only appears that the Tribe, pursuant to Acts of Congress passed after the treaty was entered into, alienated in fee simple absolute all areas of the reservation abutting on the Puyallup River, but, moreover, the Tribe's treaty right to fish "at all usual and accustomed places" is to be exercised "in common with all citizens of the Territory," Puyallup I, supra, at 398, 88 S.Ct. at 1728, and is subject to reasonable regulation by the State pursuant to its power to conserve an important natural resource. The fair apportionment of the steelhead catch between Indian net fishing and non-Indian sport fishing directed by Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (Puyallup II ), could not be effective if the Indians retained the power to take an unlimited number of steelhead within the reservation. Pp. 173-177.
3. It appears that the state court complied with the mandate of Puyallup Tribe II, supra, at 48-49, 94 S.Ct. at 333, and used a proper standard of conservation necessity in limiting the steelhead catch, where such limitation was based primarily on expert testimony for both parties. P. 177.
4. Although the Tribe properly resists the state courts' authority to order it to provide information with respect to the status of tribal members and the size of their catch, it may find that its members' interests are best served by voluntarily providing such information, but the state courts on remand must continue to respect the Tribe's right to participate in the proceedings without treating such participation as qualifying the Tribe's right to claim sovereign immunity. P. 178.
86 Wash.2d 664, 548 P.2d 1058, vacated and remanded.
William H. Rodgers, Jr., Washington, D.C., for petitioners.
H. Bartow Farr, Washington, D. C., for the United States, as amicus curiae, by special leave of Court.
Don S. Willner, Portland, Or., for respondents, Northwest Steelheaders Council of Trout Unlimited and Gary Ellis.
Slade Gorton, Olympia, Wash., for respondent Dept. of Game of State of Wash.
Mr. Justice STEVENS delivered the opinion of the Court.
1
On April 8, 1975, after more than 12 years of litigation, including two decisions by this Court,1 the Superior Court of the State of Washington for Pierce County entered a judgment against the Puyallup Tribe of Indians. That judgment recited that the court had jurisdiction to regulate the fishing activities of the Tribe both on and off its reservation, and limited the number of steelhead trout that members of the Tribe may catch with nets in the Puyallup River each year. The Tribe was directed to file a list of members authorized to exercise treaty fishing rights, and to report to the Washington State Department of Game, and to the court, the number of steelhead caught by its treaty fishermen each week. The judgment, with a slight modification, was affirmed by the Supreme Court of Washington, 86 Wash.2d 664, 548 P.2d 1058 (1976).
2
The Tribe, supported by the United States as amicus curiae, contends in this Court that the doctrine of sovereign immunity requires that the judgment be vacated, and that the state courts of Washington are without jurisdiction to regulate fishing activities on its reservation. The Tribe also argues that the limitation of the steelhead catch imposed by those courts is not, in any event, a necessary conservation measure. We hold that insofar as the claim of sovereign immunity is advanced on behalf of the Tribe, rather than the individual defendants, it is well founded, but we reject petitioner Tribe's other contentions.
3
* The complaint as originally filed by respondent Department of Game of the State of Washington (hereafter respondent),2 named 41 individuals, including "John Doe and Jane Doe, members (of the Tribe),"3 as defendants. It alleged that the defendants, claiming to be immune from the State's conservation laws, were fishing extensively in the Puyallup River with set nets and drift nets in a manner which would virtually exterminate the anadromous fishery if not enjoined. Anadromous fish are those which spend most of their life in the open sea, but which return as adults to freshwater streams, such as the Puyallup River, to spawn. The steelhead is an anadromous fish. The prayer of the complaint sought a declaration that the defendants were bound to obey the State's conservation laws and an injunction against netting the runs of anadromous fish.
4
The trial court entered a temporary restraining order enjoining each of the defendants from netting fish in the Puyallup River, and directing that service be made on each defendant.
5
In response, a "Return on Temporary Restraining Order and Answer to Complaint" was filed by "the PUYALLUP TRIBE of INDIANS, by and through the Chairman of the Tribal Council, MR. JEROME MATHESON." App. in Puyallup I, O.T. 1967, No. 247, 8 (hereafter App. in Puyallup I ). The return and answer used the term "tribe" in two senses, first as a collective synonym for the individual defendant-members,4 and also as referring to a sovereign Indian nation.5 It asserted an exclusive right to the fish in the Puyallup River, describing that right somewhat ambiguously as a "property right which belongs to the Tribe and is exercised by the Tribe members under the Treaty of Medicine Creek." Ibid. Therefore, while filed in the name of the Tribe, the return and answer was also tendered on behalf of the individual defendants.6
6
Throughout this long litigation the Tribe has continued to participate in the dual capacity of a sovereign entity7 and as a representative of its members who were individual defendants.8 The Tribe has repeatedly asserted its sovereign immunity from suit, arguing that neither it nor Congress has waived that immunity.9
7
In Puyallup I, we addressed the problems of tribal immunity and state-court jurisdiction in a footnote:
8
"Petitioners in No. 247 argue that the Washington courts lacked jurisdiction to entertain an action against the tribe without the consent of the tribe or the United States Government (citing United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894, and Turner v. United States, 248 U.S. 354, 39 S.Ct. 109, 63 L.Ed. 291), viewing the suit as one to 'extinguish a Tribal communal fishing right guaranteed by federal Treaty.' This case, however, is a suit to enjoin violations of state law by individual tribal members fishing off the reservation. As such, it is analogous to prosecution of individual Indians for crimes committed off reservation lands, a matter for which there has been no grant of exclusive jurisdiction to federal courts." 391 U.S. 392, 396-397, n. 11, 88 S.Ct. 1725, 1727, 20 L.Ed.2d 689.
9
Thus, Puyallup I settled an important threshold question in this case regardless of tribal sovereign immunity, individual defendant-members of the Puyallup Tribe remain amenable to the process of the Washington courts in connection with fishing activities occurring off their reservation. That conclusion was predicated on two separate propositions worthy of restatement here.
10
First, even though the individual defendants were members of the Tribe and therefore entitled to the benefits of the Treaty of Medicine Creek, that treaty as construed by this Court does not confer the complete individual immunity they claim. The State may qualify the Indians' right to fish "at all usual and accustomed places." Specifically, we held that the "manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians." Id., at 398, 88 S.Ct. at 1728.
11
Second, whether or not the Tribe itself may be sued in a state court without its consent or that of Congress, a suit to enjoin violations of state law by individual tribal members is permissible. The doctrine of sovereign immunity which was applied in United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894, does not immunize the individual members of the Tribe.10
12
Although only the Tribe had entered an appearance in this Court in Puyallup I, because of its representation of its individual members, jurisdiction over the individuals existed. And since the state court's jurisdiction over the individual members was settled by Puyallup I, neither in that review nor in Puyallup II was any further consideration given to the status of the Tribe itself as a sovereign. It was after our decision in Puyallup II, when the trial court was required to determine the portion of the steelhead run that could be allocated to net fishing by the members of the Tribe, that the state court first entered an order which, in terms, is directed to the Tribe rather than to the individual defendants. That order places a limit on the number of steelhead which all members of the Tribe may catch with nets and also directs the Tribe to identify the members engaged in the steelhead fishery and to report the number of fish they catch each week. In the trial court, in the Supreme Court of Washington, and in this Court, the Tribe has attacked that order as an infringement on its sovereign immunity to which neither it nor Congress has consented.
13
The attack is well founded. Absent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe. This Court, United States v. United States Fidelity & Guaranty Co. supra; the Washington Supreme Court, see, e. g., State ex rel. Adams v. Superior Court, 57 Wash.2d 181, 182-185, 356 P.2d 985, 987-988 (1960); and the commentators, see, e. g., U.S. Dept of Interior, Federal Indian Law 491-494 (1958), all concur. Respondent does not argue that either the Tribe or Congress has waived its claim of immunity or consented to the entry of an order against it. And certainly, the mere fact that the Tribe has appeared on behalf of its individual members does not effect a waiver of sovereign immunity for the Tribe itself.
14
On the other hand, the successful assertion of tribal sovereign immunity in this case does not impair the authority of the state court to adjudicate the rights of the individual defendants over whom it properly obtained personal jurisdiction. That court had jurisdiction to decide questions relating to the allocation between the hatchery fish and the natural run, the size of the catch the tribal members may take in their nets, their right to participate in hook-and-line fishing without paying state license fees and without having fish so caught diminish the size of their allowable net catch, and like questions. Only the portions of the state-court order that involve relief against the Tribe itself must be vacated in order to honor the Tribe's valid claim of immunity.
II
15
The Tribe vigorously argues that the majority of its members' netting of steelhead takes place inside its reservation,11 and that, while our prior adjudications settled respondent's right to regulate off-reservation fishing in the interest of conservation, neither respondent nor the state court has jurisdiction over on-reservation fishing. The Tribe relies on both the Treaty of Medicine Creek, 10 Stat. 1132, and federal pre-emption of on-reservation Indian affairs, see Mescalero Apache Tribe v. Jones, 411 U.S. 145, 147-148, 93 S.Ct. 1267, 1269-1270, 36 L.Ed.2d 114.
16
Article II of the Treaty of Medicine Creek provided that the Puyallup Reservation was to be "set apart, and, so far as necessary, surveyed and marked out for their exclusive use" and that no "white man (was to) be permitted to reside upon the same without permission of the tribe and the superintendent or agent." It is argued that these words amount to a reservation of a right to fish free of state interference. Such an interpretation clashes with the subsequent history of the reservation and the facts of this case. Pursuant to two Acts of Congress, 27 Stat. 633, and c. 1816, 33 Stat. 565, the Puyallups alienated, in fee simple absolute, all but 22 acres of their 18,000-acre reservation. None of the 22 acres abuts on the Puyallup River.12 Neither the Tribe nor its members continue to hold Puyallup River fishing grounds for their "exclusive use." On the contrary, it is undisputed that non-Indian licensees of respondent fish in great numbers within the reservation, and under the close supervision of respondent's wardens.13
17
Although it is conceded that the State of Washington exercises civil and criminal jurisdiction within the reservation for most purposes, petitioner contends that it may not do so with respect to fishing.14 Again with particular reference to the facts of this case, we also reject this contention.
18
Our construction of the Treaty of Medicine Creek in Puyallup I makes it perfectly clear that although the State may not deny the Indians their right to fish "at all usual and accustomed" places, the treaty right is to be exercised "in common with all citizens of the Territory." We squarely held that "the right to fish at those respective places is not an exclusive one." 391 U.S., at 398, 88 S.Ct., at 1728. Rather, the exercise of that right was subject to reasonable regulation by the State pursuant to its power to conserve an important natural resource.
19
In Puyallup II we directed the Washington State courts to devise a formula pursuant to which the steelhead catch could be "fairly apportioned" between Indian net fishing and non-Indian sport fishing. No such fair apportionment could be effective if the Indians retained the power to take an unlimited number of anadromous fish within the reservation. Speaking for the Court, Mr. Justice Douglas plainly stated that the power of the State is adequate to assure the survival of the steelhead:
20
"We do not imply that these fishing rights persist down to the very last steelhead in the river. Rights can be controlled by the need to conserve a species; and the time may come when the life of a steelhead is so precarious in a particular stream that all fishing should be banned until the species regains assurance of survival. The police power of the State is adequate to prevent the steelhead from following the fate of the passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets." 414 U.S., at 49, 94 S.Ct., at 333.
21
The resource being regulated is indigenous to the Puyallup River. Virtually all adult steelhead in the river have returned after being spawned or planted by respondent upstream from the boundaries of the original Puyallup Reservation, which encompass the lowest seven miles of the river. Though it would be decidedly unwise, if Puyallup treaty fishermen were allowed untrammeled on-reservation fishing rights, they could interdict completely the migrating fish run and "pursue the last living (Puyallup River) steelhead until it enters their nets." Ibid.15 In this manner the treaty fishermen could totally frustrate both the jurisdiction of the Washington courts and the rights of the non-Indian citizens of Washington recognized in the Treaty of Medicine Creek.16 In practical effect, therefore, the petitioner is reasserting the right to exclusive control of the steelhead run that was unequivocally rejected in both Puyallup I and Puyallup II. At this stage of this protracted litigation, we are unwilling to re-examine those unanimous decisions or to render their holdings virtually meaningless. We therefore reject petitioner's claim to an exclusive right to take steelhead while passing through its reservation.
III
22
Finally, petitioner states that the courts below have failed to apply a standard of conservation necessity in fashioning relief. We disagree. The trial court, on remand from our decision in Puyallup II, conducted a two-week trial which was dominated by expert testimony for both parties. From the testimony and accompanying exhibits the court determined the number of steelhead in the river and how many could be taken without diminishing the number in future years; the court then allocated 45% of the annual natural steelhead run available for taking to the treaty fishermen's net fishery.17 The Washington Supreme Court affirmed, 86 Wash.2d, at 684-687, 548 P.2d, at 1072-1073. This is precisely what we mandated in Puyallup II, 414 U.S., at 48-49, 94 S.Ct., at 333. In the absence of a focused attack on some portion of the Washington courts' factual determinations, we find no ground for disagreeing with them.18
23
A practical problem is presented by our disposition. The limitation on the size of the net catch applies to all members of the Tribe. The respondent has no interest in how the catch is allocated among the Indians; its concern is with the total number of steelhead netted during each season, with obtaining information to make it possible to recommend a proper allocation in succeeding years, and with enforcement against individuals who may net fish after the allowable limit has been reached. On the other hand, the Tribe has a separate interest in affording equitable treatment to its members and in protecting those members from any mistaken enforcement efforts. For that reason, although it properly resists the authority of the state court to order it to provide information with respect to the status of enrolled members of the Tribe and the size of their catch, it may find that its members' interests are best served by voluntarily providing such information to respondent and to the court in order to minimize the risk of an erroneous enforcement effort. The state courts must continue to accord full respect to the Tribe's right to participate in the proceedings on behalf of its members as it has in the past without treating such participation as qualifying its right to claim immunity as a sovereign.
24
The judgment is vacated, and the case is remanded to the Supreme Court of Washington for further proceedings not inconsistent with the opinion.
25
It is so ordered.
26
Mr. Justice BLACKMUN, cuncurring.
27
I join the Court's opinion. I entertain doubts, however, about the continuing vitality in this day of the doctrine of tribal immunity as it was enunciated in United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940). I am of the view that that doctrine may well merit re-examination in an appropriate case.
28
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting in part.
29
While I agree with the Court's resolution of the rather tangled sovereign immunity question in Part I of the opinion, I cannot agree with the Court's interpretation of the substantive rights of the Puyallup Indians under the Treaty of Medicine Creek.
30
When white settlers first began arriving in the western part of what is now Washington State, the Puyallup Indians, along with other tribes surrounding Puget Sound, were heavily dependent for their livelihoods on runs of salmon and steelhead that came up the rivers in great numbers to spawn. In the 1850's the first territorial Governor, Isaac I. Stevens, entered into a number of virtually identical treaties with representatives of these western Washington tribes to confine the Indians to reservation lands, and to open up the rest of the region to white settlers. One of these treaties was the Treaty of Medicine Creek, negotiated in 1854 by Governor Stevens with the Puyallups, the neighboring Nisqually Tribe, and other bands. That treaty gave the Puyallups a reservation at the southern end of Commencement Bay at the mouth of the Puyallup River.
31
The provisions for the Indians' all-important fishing rights stated:
32
"Article II. There is . . . reserved for the present use and occupation of the said tribes and bands (reservation land which) shall be set apart, and, so far as necessary, surveyed and marked out for their exclusive use . . . .
33
"Article III. The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory . . . ." 10 Stat. 1132, 1333. (Emphasis supplied.) As I understand the Court's reading of these provisions, with which I agree, Art. II guarantees exclusive use of the reservation, including exclusive fishing rights, to the Puyallups. Article III concerns fishing rights off the reservation, guaranteeing such rights at all "usual and accustomed grounds and stations," not, however, exclusively but "in common with all the citizens of the Territory."
34
The two questions presented are, first, what fishing rights do the Puyallup Indians have now, over 100 years after the signing of the treaty?; and, second, to what extent is the State of Washington empowered to limit those rights? We do not write on a clean slate as to either question in light of Puyallup I, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689, decided in 1968, and Puyallup II, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254, decided in 1973.
35
Puyallup I, presented no question of the "extent of . . . reservation rights," but only the question of the power of the State "to enjoin violations of state (fishing regulations) by individual tribal members fishing off the reservation." 391 U.S., at 394, 397 n.11, 88 S.Ct., at 1727.1 Puyallup I held that Washington's power to regulate off-reservation fishing for salmon and steelhead by the Puyallups was limited to regulations necessary in the interest of conservation, id., at 398, 88 S.Ct., at 1728, and remanded for a determination by the Washington State courts of reasonable and necessary conservation measures, and for an interpretation of the phrase "in common with all the citizens of the Territory" contained in Art. III of the treaty. The Washington Supreme Court's response on remand was to sustain a total ban on all net fishing for steelhead. 80 Wash.2d 561, 497 P.2d 171 (1972).2 In consequence, the case returned here as Puyallup II, which held that the interpretation of Art. III as permitting the total ban was erroneous. The Court again remanded the case, this time for a determination of a means of "fairly apportion(ing)" the steelhead run between the hook-and-line sports fishery and the Puyallups' net fishery. 414 U.S., at 48, 94 S.Ct., at 333. It was again made explicit that only "off-reservation fishing," governed by Art. III of the treaty, was involved. Id., at 45, 94 S.Ct., at 331.
36
Before proceedings began on remand, the Court of Appeals for the Ninth Circuit decided a separate case in which the State of Washington challenged "the continued existence of the Puyallup Indian Reservation and as a consequence, the right of the Puyallup Tribe of Indians to fish, free from state interference, on that part of the Puyallup River lying within the Reservation." Relying on Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973), the Court of Appeals held "that the Puyallup Indian reservation continues to exist." United States v. Washington, 496 F.2d 620, 621 (1974) (emphasis supplied). The Washington Supreme Court, referring to the "recently established, continuing existence of the Puyallup Indian Reservation," accepted the holding of the Court of Appeals, but nevertheless concluded that the State was not foreclosed from exercising regulatory authority within the reservation. 86 Wash.2d 664, 668-669, 548 P.2d 1058, 1063-1064 (1976). The court construed Art. III of the treaty to require that the Puyallups be allocated 45% of the harvestable natural-run steelhead for their net fishery, and that the remaining 55% be allocated to the hook-and-line sports fishery. The court further held that none of the harvestable hatchery-bred steelhead should be allocated to the Puyallups' net fishery. Thus, despite its acceptance of the Court of Appeals' holding that the reservation still existed, the Washington Supreme Court applied Art. III of the treaty limited by its terms to off-reservation fishing to on-reservation fishing governed by Art. II.
37
Unlike either Puyallup I or Puyallup II, the case before us must be determined under Art. II, which in plainest English provides for "exclusive" fishing rights for the Puyallups. Article II cannot be read, in my view, to sanction the apportionment of harvestable fish between the Puyallups and other fishermen. Nor has this Court ever decided whether a State has the power to regulate on-reservation fishing in the interest of conservation. See Mattz v. Arnett, supra, 412 U.S. at 485, 93 S.Ct. at 22483. I would therefore reverse. I would remand, as we did in Mattz, for a determination by the state courts in the first instance of what measures, if any, are necessary to regulate the Puyallups' on-reservation fishery for conservation purposes.4
38
The Court tries to avoid the force of this analysis by denigrating the holding of the Court of Appeals for the Ninth Circuit. The Court states: "The continued existence of the Puyallup Reservation has been a matter of dispute on which we express no opinion. . . . (The Ninth Circuit's) decision predates our consideration of DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300, and Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660." Ante, at 173 n.11. This, to say the least, is a casual disregard of settled principles of res judicata and collateral estoppel. The United States and the State of Washington were parties to the action in the Court of Appeals, and surely we must assume, in the absence of any suggestion to the contrary, that the parties fully litigated their positions respecting reservation status. The Court of Appeals squarely held, contrary to the contention of the State of Washington, that the reservation continued to exist, and review here was denied. Washington v. United States, 419 U.S. 1032, 95 S.Ct. 513, 42 L.Ed.2d 307 (1974). The Supreme Court of Washington in the case now before us accepted the Ninth Circuit's holding as federal law binding on it. It is inappropriate now for the Court to denigrate the impact of that holding, particularly when the result is to vest authority in the State that lost on just that issue in the Court of Appeals.
39
The Court also questions whether on-reservation fishing is at issue in this case, relying on the fact that the Puyallups have alienated almost all of their land, and that only 22 acres of the reservation now remain in trust status. Ante, at 174. The Court does not go so far as to deny the existence of the reservation, and, of course, selling reservation land to non-Indians can be "completely consistent with continued reservation status." Mattz v. Arnett, supra, 412 U.S., at 497, 93 S.Ct., at 2254; Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586-587, 97 S.Ct. 1361, 1362-1363, 51 L.Ed.2d 660 (1977); DeCoteau v. District County Court, 420 U.S. 425, 432, 444, 95 S.Ct. 1082, 1087, 1092, 43 L.Ed.2d 300 (1975). Nor does the Court, or indeed any party, contend that somehow the sale of most of the lands included the sale of the exclusive fishing rights the Puyallups were granted by Art. II. The Court's argument seems to be that since the Puyallups do not now "hold Puyallup River fishing grounds for their 'exclusive use' " they have forfeited any claim to enforce their exclusive fishing rights under Art. II. Ante, at 174. This analysis ignores the fact that the Puyallups do not now hold their fishing grounds for their exclusive use precisely because the State has relentlessly sought for many years to prevent their doing so. Indeed, this very suit was begun 14 years ago in an effort to prevent the Puyallups from exercising what they claimed to be their treaty rights on their old reservation.
40
Today's decision, ironically, is at odds with the position taken by the State in another case involving Indian fishing rights in Puget Sound. There the State agreed that on-reservation fishing is not subject to regulation by the State. In United States v. Washington, 384 F.Supp. 312, 332 (W.D.Wash.1974) aff'd 520 F.2d 676 (CA9 1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), District Judge Boldt, construed the language of Art. II of the Treaty of Medicine Creek and that of virtually identical treaties entered into by Governor Stevens with other western Washington tribes to mean that "(a)n exclusive right of fishing was reserved by the tribes within the area and boundary waters of their reservations, wherein tribal members might make their homes if they chose to do so." (Footnote omitted; emphasis in original.) This proposition was apparently so self-evident to the parties, including the State of Washington, that "(a)ll parties in this case agree(d) that on reservation fishing is not subject to state regulation . . . ." 384 F.Supp., at 341.5
41
Doubtless 14 years of litigation have made the Court anxious to bring this case to an end, and this explains today's holding just broad enough to dispose of the Puyallups' substantive claims but so narrowly fact-specific that it will probably have no significant impact on the Puget Sound Indian fishing rights case still pending in the District Court. This suggests that the result would not be the same were the case here for the first time instead of the third. For the language of the treaty is very clear: On-reservation fishing is governed by Art. II.
42
I respectfully dissent.
1
In Puyallup Tribe v. Dept. of Game of Washington, et al., 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (Puyallup I ), the Court held that Art. III of the Treaty of Medicine Creek, 10 Stat. 1133, did not foreclose reasonable state regulation, in the interest of conservation, of fishing by the Indians "in common with" fishing by others; the Court remanded the case to the state court to determine whether a total ban on net fishing was justified by the interest in conservation.
In Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (Puyallup II ), the Court held that a complete ban on net fishing for steelhead trout by the Indians was precluded by the treaty, and remanded for a determination of the number of catchable fish that should be apportioned to an Indian net fishery.
2
Respondent regulates steelhead fishing in the State of Washington. The Washington Department of Fisheries was a coplaintiff with respondent in the original complaint by virtue of its responsibility for salmon fishing. After this Court's decision in Puyallup I, the Department of Fisheries amended its regulation to allow members of the Tribe to use a net fishery for salmon. No issue relating to salmon fishing remains in the case.
3
Three of the named individuals were further identified as tribal officers.
4
I. e., "Answering Paragraph No. 1 these defendants being a tribe of Indians . . . ," App in Puyallup I, p. 8; "the defendants have suffered numerous arrests, jailing and other indignities at the hands of the plaintiffs who knowingly and wilfully badger, abuse and degrade the defendants . . . ," id., at 9; "(t)hat the plaintiffs are recklessly using the power of the State of Washington to deprive the defendant (sic ) and each of them of their means of making a livelihood . . . ," id., at 10.
5
I. e., "this Tribe of Indians signed a treaty with the United States of America as a sovereign nation of Indians . . ."; "the Puyallup Tribe of Indians own the fish in the river . . . ." Ibid.
6
The trial court so found: "Defendants answered and alleged that they were members of the Puyallup Tribe of Indians . . . ." Id., at 31. Finding of Fact I.
7
The Tribe has been described several ways in the captions which have been filed over the years. In this Court this Term the Tribe has described itself as "Puyallup Tribe, Inc." The Washington Supreme Court has thrice noted that there is no such entity, see 86 Wash.2d 664, 666 n. 1, 548 P.2d 1058, 1062 n. 1 (1975). In Puyallup I the trial court held that the Tribe had ceased to exist; this holding was reversed by the Washington Supreme Court, 70 Wash.2d 245, 252-253, 422 P.2d 754, 758-759 (1967). It has therefore been settled in this case that, whatever its correct name may be, the Tribe is still in existence and is clearly recognized as such by the United States.
In this Court Ramona Bennett is a copetitioner with the Tribe. She appears in her capacity as chairwoman of the Puyallup Tribal Council. Accordingly, we treat this case as though the Tribe itself is the only petitioner in this Court and hereafter use the term "petitioner" to refer to the Tribe.
8
On a few occasions individual tribal members have been represented by attorneys who filed appearances in the Superior Court for Pierce County. On at least two occasions attorneys have filed appearances in the Washington Supreme Court in this capacity. No such appearance has been filed since the decision in Puyallup II in 1973. No appearance on behalf of an individual defendant was ever filed in this Court. Nor does the record reveal any instance of an objection to the Tribe's representation of the individual defendants. It is clear from the record that the major responsibility for the defense of the litigation has been assumed by the Tribe.
9
It has relied on Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483, and United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894. Only twice in this litigation has petitioner failed to clearly raise the issue of its tribal sovereign immunity. The first time was in its first return and answer, supra, at 168-169. The immunity issue was later presented to the trial court, however, and the court in the course of concluding that the Puyallup Tribe had ceased to exist, held in its memorandum decision that "this argument about the tribe being a sovereign nation is without merit." App. in Puyallup I, p. 18. As already noted, n. 7, supra, the trial court's holding that the Tribe had ceased to exist was reversed by the Washington Supreme Court. Second, during the representation of the Tribe by the Solicitor General before this Court in Puyallup II, no mention was made of tribal sovereign immunity. Congress has not given the Solicitor General authority to waive the immunity of an Indian tribe. United States v. United States Fidelity & Guaranty Co. supra, at 513, 60 S.Ct., at 656-657; cf. Ford Motor Co. v. Dept. of Treasury of Indiana, 323 U.S. 459, 466-470, 65 S.Ct. 347, 351-353, 89 L.Ed. 389.
10
That case involved an action brought in a federal court by the United States on behalf of the Choctaw and Chickasaw Nations to recover royalties under a mineral lease; defendant was the lessee's surety. In an earlier bankruptcy proceeding, the lessee had obtained a judgment for $9,060.90 pursuant to a cross-claim against the same tribes. In the Fidelity case the lessee's surety pleaded the earlier judgment as a bar to recovery in the action for royalties. We held that the earlier judgment was void in the absence of congressional authorization for a suit, 309 U.S., at 512-513, 60 S.Ct., at 655-656. There were no individual parties to the proceeding.
11
The continued existence of the Puyallup Reservation has been a matter of dispute on which we express no opinion. The Ninth Circuit, relying on our decision in Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 held that the reservation did still exist, United States v. Washington, 496 F.2d 620 (1974), cert. denied, 419 U.S. 1032, 95 S.Ct. 513, 42 L.Ed.2d 307. That decision predates our consideration of DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300, and Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660.
12
70 Wash.2d, at 253, 422 P.2d, at 759 (Puyallup I ). Counsel for petitioner intimated at oral argument that petitioner might contend in the future that it retained trust status title to the bed of the Puyallup River, Tr. of Oral Arg. 10. This contention is at odds with the otherwise uncontradicted findings below.
13
The tribal members' right to fish "at all usual and accustomed grounds and stations," secured by Art. III of the treaty, continues to protect their right to fish on ceded lands within the confines of the reservation.
14
Washington has acquired "Pub.L. 280" jurisdiction over the Puyallup Reservation, much of which coexists with the city of Tacoma. Pub.L. No. 280, § 7, 67 Stat. 590; Wash.Rev.Code §§ 37.12.010.-37.12.070 (1974). A provision of Pub.L. 280 exempts treaty fishing rights from state jurisdiction, however, 18 U.S.C. § 1162(b).
15
The original complaint in this case alleged that, "(a)s a result of the defendants' fishery, the anadromous fish runs of the Puyallup River will be virtually exterminated if said fishery is permitted to continue." App. in Puyallup I, p. 6.
The ability of the on-reservation activity to completely destroy the resource in question has not been a factor in other cases which have rejected regulation, Arnett v. Five Gill Nets, 48 Cal.App.3d 454, 463-464, 121 Cal.Rptr. 906, 912-913 (1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757 (on remand from this Court, Mattz v. Arnett, supra, where the on-reservation fishing regulation question was reserved, 412 U.S., at 485, 93 S.Ct., at 2248; People v. Jondreau, 384 Mich. 539, 185 N.W.2d 375 (1971); State v. Arthur, 74 Idaho 251, 261 P.2d 135 (1953), cert. denied, 347 U.S. 937, 74 S.Ct. 627, 98 L.Ed. 1087; State v. McConville, 65 Idaho 46, 139 P.2d 485 (1943).
16
"Article III. The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory." 10 Stat. 1133. As to the treaty fishermen, this sentence effects a reservation of a previously exclusive right. But that language also recognizes that the right is to be shared in common with the non-Indian "citizens of the Territory."
17
The courts below also held that the run of hatchery fish introduced into the Puyallup by respondent was not available to the treaty fishermen. The issue was not presented in the petition for certiorari, nor was it argued in petitioner's brief. Respondent did attempt to raise the issue in its untimely cross-petition for certiorari, and by its brief arguing affirmance. Because the question has no bearing on our decision of the questions presented by petitioner, we decline to decide it.
18
But for the direction of relief against the Tribe, the order of the Superior Court is admirably narrow in scope and well suited to effect a minimum of intrusion upon the treaty fishermen's protected rights. The treaty fishermen are free to fish up to the limit imposed by the court without any restriction as to time, place, or method of fishing.
1
The question of whether the Puyallups' reservation continued to exist was not reached. 391 U.S., at 394 n. 1, 88 S.Ct., at 1726.
2
The state court also sustained a regulation permitting some net fishing by the Puyallups for salmon. Review of that holding was not sought here.
3
Mattz v. Arnett held that the Klamath River Reservation in California had not been extinguished, but intimated no view on the authority of California to regulate fishing on the reservation. 412 U.S., at 485, 93 S.Ct., at 2248. The Klamath River has an anadromous fishery comparable to that on the Puyallup River, in that fishermen allowed net fishing can prevent all fish in a given run from reaching their spawning grounds. On remand in Mattz, the California Court of Appeal expressed doubt that the State could regulate on-reservation fishing even in the interest of conservation, but did not decide the issue because the Indians' fishing activity was found not to be a sufficient threat to conservation to justify state regulation. Arnett v. Five Gill Nets, 48 Cal.App.3d 454, 463-464, 121 Cal.Rptr. 906, 912-913 (1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757 (1976).
4
The degree of danger to the survival of the anadromous fishery in the Puyallup River posed by the Puyallups' net fishing has been a matter of dispute in this case from the beginning. The parties, even now, disagree about the willingness of the Puyallups to observe sound conservation practices. Compare Brief for Respondent, 17-18 with Brief for Petitioners 11-12. The Puyallups apparently now carry on their off-reservation salmon net fishery under the supervision of the Federal District Court for the Western District of Washington. United States v. Washington, 384 F.Supp. 312, 420 (1974); Brief for Petitioners, 12. District Judge Boldt in that case found that none of the fishing tribes of western Washington, including the Puyallups, have conducted their off-reservation fisheries in such a way as to endanger any species:
"With a single possible exception testified to by a highly interested witness . . . and not otherwise substantiated, notwithstanding three years of exhaustive trial preparation, neither Game nor Fisheries has discovered and produced any credible evidence showing any instance, remote or recent, when a definitely identified member of any plaintiff tribe exercised his off reservation treaty rights by any conduct or means detrimental to the perpetuation of any species of anadromous fish." 384 F.Supp., at 338 n. 26.
5
This decision was handed down a month and a half before the Court of Appeals for the Ninth Circuit decided in United States v. State of Washington, 496 F.2d 620 (1974), that the Puyallups' reservation continued to exist. On appeal from Judge Boldt's decision, the State challenged certain aspects of the calculation of the allocation under Art. III related to on-reservation catches, but it appears never to have asserted that it had authority to regulate the on-reservation fishery. The Court of Appeals affirmed Judge Boldt's decision in all relevant respects, 520 F.2d 676, 690 (1975), and nowhere suggested that on-reservation fishing by the Puyallups was to be treated differently from that of any other tribe. The Court of Appeals affirmed Judge Boldt's decision over a year after it found that the Puyallups' reservation had never been extinguished.
| 12
|
53 L.Ed.2d 629
97 S.Ct. 2532
433 U.S. 119
David L. JONES, Secretary of the North Carolina Department of Correction, et al., Appellants,v.NORTH CAROLINA PRISONERS' LABOR UNION, INC., etc.
No. 75-1874.
Argued April 19, 1977.
Decided June 23, 1977.
Syllabus
Appellee prisoners' labor union brought this action under 42 U.S.C. § 1983, claiming that its First Amendment and equal protection rights were violated by regulations promulgated by the North Carolina Department of Correction that prohibited prisoners from soliciting other inmates to join the Union and barred Union meetings and bulk mailings concerning the Union from outside sources. A three-judge District Court, which noted that appellants had "permitted" inmates to join the Union, granted substantial injunctive relief, having concluded that prohibiting inmate-to-inmate solicitation "border(ed) on the irrational," and that since bulk mailings to and meetings with inmates by the Jaycees, Alcoholics Anonymous, and in one institution the Boy Scouts (hereafter collectively "service organizations") had been permitted, appellants, absent a showing of detriment to penological objectives, "may not pick and choose depending on (their) approval or disapproval of the message or purpose of the group." Held:
1. The challenged regulations do not violate the First Amendment as made applicable to the States by the Fourteenth. Pp. 125-133.
(a) The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495, perhaps the most obvious of which is associational rights that the First Amendment protects outside of prison walls. Pp. 125-126.
(b) The District Court overstated what appellants' concession as to true membership entailed appellants permitted membership in the Union (which involved no dues or obligations) because of the reasonable assumption that the individual could believe what he chose to believe, but appellants never acquiesced in, or permitted, group activity by the Union, and the ban on inmate solicitation and group meetings was rationally related to the reasonable objectives of prison administration. Pp. 126-129.
(c) First Amendment speech rights are barely implicated here, mail rights themselves not being involved but only the cost savings through bulk mailings. Pp. 130-131.
(d) The prohibition on inmate-to-inmate solicitation does not unduly abridge inmates' free speech rights. If the prison officials are otherwise entitled to control organized union activity within the confines of a prison the solicitation ban is not impermissible under the First Amendment, for such a prohibition is both reasonable and necessary. Pell v. Procunier, supra, at 822, 94 S.Ct., at 2804. Pp. 131-132.
(e) First Amendment associational rights are also not unduly abridged here. Appellants' conclusion that the presence of a prisoners' union would be detrimental to prison order and security has not been conclusively shown to be wrong, and the regulations drafted were no broader than necessary to meet the perceived threat of group meetings and organizational activity to such order and security. Pp. 132-133.
2. Appellants' prohibition against the receipt by and distribution to the inmates of bulk mail from the Union as well as the prohibition of Union meetings among inmates whereas the service organizations were given bulk mailing and meeting rights, does not violate the Equal Protection Clause. The prison does not constitute a "public forum," and appellants demonstrated a rational basis for distinguishing between the Union (which occupied an adversary role and espoused a purpose illegal under North Carolina law) and the service organizations (which performed rehabilitation services). Pp. 133-136.
409 F.Supp. 937, reversed.
Jacob L. Safron, Raleigh, N. C., for appellants.
Kenneth S. Geller, Washington, D. C., for United States, as amicus curiae, by special leave of Court.
Norman B. Smith, Greensboro, N. C., for appellee.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Pursuant to regulations promulgated by the North Carolina Department of Correction, appellants prohibited inmates from soliciting other inmates to join appellee, the North Carolina Prisoners' Labor Union, Inc. (Union), barred all meetings of the Union, and refused to deliver packets of Union publications that had been mailed in bulk to several inmates for redistribution among other prisoners. The Union instituted this action, based on 42 U.S.C. § 1983, to challenge these policies. It alleged that appellants' efforts to prevent the operation of a prisoners' union violated the First and Fourteenth Amendment rights of it and its members and that the refusal to grant the Union those privileges accorded several other organizations operating within the prison system deprived the Union of equal protection of the laws. A three-judge court was convened. After a hearing, the court found merit in the Union's free speech, association, and equal protection arguments, and enjoined appellants from preventing inmates from soliciting other prisoners to join the Union and from "refus(ing) receipt of the Union's publications on the ground that they are calculated to encourage membership in the organization or solicit joining." The court also held that the Union "shall be accorded the privilege of holding meetings under such limitations and control as are neutrally applied to all inmate organizations . . . ." 409 F.Supp. 937. We noted probable jurisdiction to consider whether the First and Fourteenth Amendments extend prisoner labor unions such protection. 429 U.S. 976, 97 S.Ct. 483, 50 L.Ed.2d 583. We have decided that they do not, and we accordingly reverse the judgment of the District Court.
2
* Appellee, an organization self-denominated as a Prisoners' Labor Union, was incorporated in late 1974, with a stated goal of "the promotion of charitable labor union purposes" and the formation of a "prisoners' labor union at every prison and jail in North Carolina to seek through collective bargaining . . . to improve . . . working . . . conditions. . . ."1 It also proposed to work toward the alteration or elimination of practices and policies of the Department of Correction which it did not approve of, and to serve as a vehicle for the presentation and resolution of inmate grievances. By early 1975, the Union had attracted some 2,000 inmate "members" in 40 different prison units throughout North Carolina. The State of North Carolina, unhappy with these developments, set out to prevent inmates from forming or operating a "union." While the State tolerated individual "membership," or belief, in the Union, it sought to prohibit inmate solicitation of other inmates, meetings between members of the Union, and bulk mailings concerning the Union from outside sources. Pursuant to a regulation promulgated by the Department of Correction on March 26, 1975, such solicitation and group activity were proscribed.
3
Suit was filed by the Union in the United States District Court for the Eastern District of North Carolina on March 18, 1975, approximately a week before the date upon which the regulation was to take effect. The Union claimed that its rights, and the rights of its members, to engage in protected free speech, association, and assembly activities were being infringed by the no-solicitation and no-meeting rules. It also alleged a deprivation of equal protection of the laws in that the Jaycees and Alcoholics Anonymous were permitted to have meetings and other organizational rights, such as the distribution of bulk mailing material, that the Union was being denied. A declaratory judgment and injunction against continuation of these restrictive policies were sought, as were substantial damages.2
4
A three-judge District Court, convened pursuant to 28 U.S.C. §§ 2281 and 2284, while dismissing the Union's prayers for damages and attorney's fees, granted it substantial injunctive relief. The court found that appellants "permitted" inmates to join the Union, but "oppose(d) the solicitation of other inmates to join," either by inmate-to-inmate solicitation or by correspondence. 409 F.Supp., at 941. The court noted, id., at 942:
5
"(Appellants) sincerely believe that the very existence of the Union will increase the burdens of administration and constitute a threat of essential discipline and control. They are apprehensive that inmates may use the Union to establish a power bloc within the inmate population which could be utilized to cause work slowdowns or stoppages or other undesirable concerted activity."
6
The District Court concluded, however, that there was "no consensus" among experts on these matters, and that it was "left with no firm conviction that an association of inmates is necessarily good or bad . . . ." Id., at 942-943. The court felt that since appellants countenanced the bare fact of Union membership, it had to allow solicitation activity, whether by inmates or by outsiders:
7
"We are unable to perceive why it is necessary or essential to security and order in the prisons to forbid solicitation of membership in a union permitted by the authorities. This is not a case of riot. There is not one scintilla of evidence to suggest that the Union has been utilized to disrupt the operation of the penal institutions." Id., at 944.
8
The other questions, respecting the bulk mailing by the Union of literature into the prisons for distribution and the question of meetings of inmate members, the District Court resolved against appellants "by application of the equal protection clause of the fourteenth amendment." Ibid. Finding that such meetings and bulk mailing privileges had been permitted the Jaycees, Alcoholics Anonymous, and, in one institution, the Boy Scouts, the District Court concluded that appellants "may not pick and choose depending on (their) approval or disapproval of the message or purpose of the group" unless "the activity proscribed is shown to be detrimental to proper penological objectives, subversive to good discipline, or otherwise harmful." Ibid. The court concluded that appellants had failed to meet this burden. Appropriate injunctive relief was thereupon ordered.3
II
A.
9
The District Court, we believe, got off on the wrong foot in this case by not giving appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement. While litigation by prison inmates concerning conditions of confinement, challenged other than under the Eighth Amendment, is of recent vintage, this Court has long recognized that "(l)awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948); see also Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration. We noted in Pell v. Procunier, supra, at 822, 94 S.Ct., at 2804:
10
"(A) prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law."
11
Perhaps the most obvious of the First Amendment rights that are necessarily curtailed by confinement are those associational rights that the First Amendment protects outside of prison walls. The concept of incarceration itself entails a restriction on the freedom of inmates to associate with those outside of the penal institution. Equally as obvious, the inmate's "status as a prisoner" and the operational realities of a prison dictate restrictions on the associational rights among inmates.
12
Because the realities of running a penal institution are complex and difficult, we have also recognized the wide-ranging deference to be accorded the decisions of prison administrators. We noted in Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974):
13
"(C)ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities." (Footnote omitted.)
14
See also Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972).
15
It is in this context that the claims of the Union must be examined.
B
16
State correctional officials uniformly testified that the concept of a prisoners' labor union was itself fraught with potential dangers, whether or not such a union intended, illegally, to press for collective-bargaining recognition.4 Appellant Ralph Edwards, the Commissioner of the Department of Correction, stated in his affidavit:
17
"The creation of an inmate union will naturally result in increasing the existing friction between inmates and prison personnel. It can also create friction between union inmates and non-union inmates."
18
Appellant David Jones, the Secretary of the Department of Correction, stated:
19
"The existence of a union of inmates can create a divisive element within the inmate population. In a time when the units are already seriously over-crowded, such an element could aggravate already tense conditions. The purpose of the union may well be worthwhile projects. But it is evident that the inmate organizers could, if recognized as spokesman for all inmates, make themselves to be power figures among the inmates. If the union is successful, these inmates would be in a position to misuse their influence. After the inmate union has become established, there would probably be nothing this Department could do to terminate its existence, even if its activities became overtly subversive to the functioning of the Department. Work stoppages and mutinies are easily foreseeable. Riots and chaos would almost inevitably result. Thus, even if the purposes of the union are as stated in the complaint, the potential for a dangerous situation exists, a situation which could not be brought under control."
20
The District Court did not reject these beliefs as fanciful or erroneous. It, instead, noted that they were held "sincerely," and were arguably correct.5 409 F.Supp., at 942-943. Without a showing that these beliefs were unreasonable, it was error for the District Court to conclude that appellants needed to show more. In particular, the burden was not on appellants to show affirmatively that the Union would be "detrimental to proper penological objectives" or would constitute a "present danger to security and order." Id., at 944-945. Rather, "(s)uch considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." Pell v. Procunier, 417 U.S., at 827, 94 S.Ct., at 2806. The necessary and correct result of our deference to the informed discretion of prison administrators permits them, and not the courts, to make the difficult judgments concerning institutional operations in situations such as this.
21
The District Court, however, gave particular emphasis to what it viewed as appellants' tolerance of membership by inmates in the Union as undermining appellants' position. It viewed a system which permitted inmate "membership" but prohibited inmate-to-inmate solicitation (as well, it should be noted, as meetings, or other group activities) as bordering "on the irrational," and felt that "(t)he defendants' own hypothesis in this case is that the existence of the Union and membership in it are not dangerous, for otherwise they would surely have undertaken to forbid membership." 409 F.Supp., at 944. This, however, considerably overstates what appellants' concession as to pure membership entails. Appellants permitted membership because of the reasonable assumption that each individual prisoner could believe what he chose to believe, and that outside individuals should be able to communicate ideas and beliefs to individual inmates. Since a member qua member incurs no dues or obligations a prisoner apparently may become a member simply by considering himself a member this position simply reflects the concept that thought control, by means of prohibiting beliefs, would not only be undesirable but impossible.
22
But appellants never acquiesced in, or permitted, group activity of the Union in the nature of a functioning organization of the inmates within the prison, nor did the District Court find that they had. It is clearly not irrational to conclude that individuals may believe what they want, but that concerted group activity, or solicitation therefor, would pose additional and unwarranted problems and frictions in the operation of the State's penal institutions. The ban on inmate solicitation and group meetings, therefore, was rationally related to the reasonable, indeed to the central, objectives of prison administration. Cf. Pell v. Procunier, supra, at 822, 94 S.Ct., at 2804.
C
23
The invocation of the First Amendment, whether the asserted rights are speech or associational, does not change this analysis. In a prison context, an inmate does not retain those First Amendment rights that are "inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, supra, at 822, 94 S.Ct., at 2804. Prisons, it is obvious, differ in numerous respects from free society. They, to begin with, are populated, involuntarily, by people who have been found to have violated one or more of the criminal laws established by society for its orderly governance. In seeking a "mutual accommodation between institutional needs and objectives (of prisons) and the provisions of the Constitution that are of general application," Wolff v. McDonnell, 418 U.S., at 556, 94 S.Ct., at 2975, this Court has repeatedly recognized the need for major restrictions on a prisoner's rights. See, e. g., id., 418 U.S., at 561-562, 94 S.Ct., at 2977-2978; Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 1220-1221, 8 L.Ed.2d 384 (1962). These restrictions have applied as well where First Amendment values were implicated. See, e. g., Pell v. Procunier, supra; Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976).
24
An examination of the potential restrictions on speech or association that have been imposed by the regulations under challenge, demonstrates that the restrictions imposed are reasonable, and are consistent with the inmates' status as prisoners and with the legitimate operational considerations of the institution. To begin with, First Amendment speech rights are barely implicated in this case.6 Mail rights are not themselves implicated; the only question respecting the mail is that of bulk mailings.7 The advantages of bulk mailings to inmates by the Union are those of cheaper rates and convenience. While the District Court relied on the cheaper bulk mailing rates in finding an equal protection violation, infra, at 133, it is clear that losing these cost advantages does not fundamentally implicate free speech values. Since other avenues of outside informational flow by the Union remain available, the prohibition of bulk mailing, reasonable in the absence of First Amendment considerations, remains reasonable.8 Cf. Pell v. Procunier, supra; Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974).
25
Nor does the prohibition on inmate-to-inmate solicitation of membership trench untowardly on the inmates' First Amendment speech rights. Solicitation of membership itself involves a good deal more than the simple expression of individual views as to the advantages or disadvantages of a union or its views; it is an invitation to collectively engage in a legitimately prohibited activity. If the prison officials are otherwise entitled to control organized union activity within the prison walls, the prohibition on solicitation for such activity is not then made impermissible on account of First Amendment considerations, for such a prohibition is then not only reasonable but necessary. Pell v. Procunier, 417 U.S., at 822, 94 S.Ct., at 2804.
26
First Amendment associational rights, while perhaps more directly implicated by the regulatory prohibitions, likewise must give way to the reasonable considerations of penal management. As already noted, numerous associational rights are necessarily curtailed by the realities of confinement. They may be curtailed whenever the institution's officials, in the exercise of their informed discretion, reasonably conclude that such associations, whether through group meetings or otherwise, possess the likelihood of disruption to prison order or stability, or otherwise interfere with the legitimate penological objectives of the prison environment. As we noted in Pell v. Procunier, supra, at 823, 94 S.Ct., at 2804, "central to all other corrections goals is the institutional consideration of internal security within the correctional facilities themselves."
27
Appellant prison officials concluded that the presence, perhaps even the objectives, of a prisoners' labor union would be detrimental to order and security in the prisons, supra, at 127. It is enough to say that they have not been conclusively shown to be wrong in this view. The interest in preserving order and authority in the prisons is self-evident. Prison life, and relations between the inmates themselves and between the inmates and prison officials or staff, contain the ever-present potential for violent confrontation and conflagration. Wolff v. McDonnell, 418 U.S., at 561-562, 94 S.Ct., at 2977-2978. Responsible prison officials must be permitted to take reasonable steps to forestall such a threat, and they must be permitted to act before the time when they can compile a dossier on the eve of a riot.9 The case of a prisoners' union, where the focus is on the presentation of grievances to, and encouragement of adversary relations with, institution officials surely would rank high on anyone's list of potential trouble spots. If the appellants' views as to the possible detrimental effects of the organizational activities of the Union are reasonable, as we conclude they are, then the regulations are drafted no more broadly than they need be to meet the perceived threat which stems directly from group meetings and group organizational activities of the Union. Cf. Procunier v. Martinez, 416 U.S., at 412-416, 94 S.Ct., at 1811-1813. When weighed against the First Amendment rights asserted, these institutional reasons are sufficiently weighty to prevail.
D
28
The District Court rested on the Equal Protection Clause of the Fourteenth Amendment to strike down appellants' prohibition against the receipt and distribution of bulk mail from the Union as well as the prohibition of Union meetings among the inmates. It felt that this was a denial of equal protection because bulk mailing and meeting rights had been extended to the Jaycees, Alcoholics Anonymous, and the Boy Scouts. The court felt that just as outside the prison, a "government may not pick and choose depending upon its approval or disapproval of the message or purpose of the group," 409 F.Supp., at 944, so, too, appellants could not choose among groups without first demonstrating that the activity proscribed is "detrimental to proper penological objectives, subversive to good discipline, or otherwise harmful." Ibid.
29
This analysis is faulty for two reasons. The District Court erroneously treated this case as if the prison environment were essentially a "public forum." We observed last Term in upholding a ban on political meetings at Fort Dix that a Government enclave such as a military base was not a public forum. Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). We stated, id., at 838 n.10, 96 S.Ct., at 1217:
30
"The fact that other civilian speakers and entertainers had sometimes been invited to appear at Fort Dix did not of itself serve to convert Fort Dix into a public forum or to confer upon political candidates a First or Fifth Amendment right to conduct their campaigns there. The decision of the military authorities that a civilian lecture on drug abuse, a religious service by a visiting preacher at the base chapel, or a rock musical concert would be supportive of the military mission of Fort Dix surely did not leave the authorities powerless thereafter to prevent any civilian from entering Fort Dix to speak on any subject whatever."
31
A prison may be no more easily converted into a public forum than a military base. Thus appellants need only demonstrate a rational basis for their distinctions between organizational groups. Cf. City of Charlotte v. Firefighters, 426 U.S. 283, 96 S.Ct. 2036, 48 L.Ed.2d 636 (1976). Here, appellants' affidavits indicate exactly why Alcoholics Anonymous and the Jaycees have been allowed to operate within the prison. Both were seen as serving a rehabilitative purpose, working in harmony with the goals and desires of the prison administrators, and both had been determined not to pose any threat to the order or security of the institution.10 The affidavits indicate that the administrators' view of the Union differed critically in both these respects.11
32
Those conclusions are not unreasonable. Prison administrators may surely conclude that the Jaycees and Alcoholics Anonymous differ in fundamental respects from appellee Union, a group with no past to speak of, and with the avowed intent to pursue an adversary relationship with the prison officials. Indeed, it would be enough to distinguish the Union from Alcoholics Anonymous to note that the chartered purpose of the Union, apparently pursued in the prison, was illegal under North Carolina law.12
33
Since a prison is most emphatically not a "public forum," these reasonable beliefs of appellants are sufficient, cf. Greer v. Spock, supra; City of Charlotte v. Firefighters, supra. The District Court's further requirement of a demonstrable showing that the Union was in fact harmful is inconsistent with the deference federal courts should pay to the informed discretion of prison officials. Procunier v. Martinez, 416 U.S. at 405, 94 S.Ct., at 1807. It is precisely in matters such as this, the decision as to which of many groups should be allowed to operate within the prison walls, where, confronted with claims based on the Equal Protection Clause, the courts should allow the prison administrators the full latitude of discretion, unless it can be firmly stated that the two groups are so similar that discretion has been abused. That is surely not the case here. There is nothing in the Constitution which requires prison officials to treat all inmate groups alike where differentiation is necessary to avoid an imminent threat of institutional disruption or violence. The regulations of appellants challenged in the District Court offended neither the First nor the Fourteenth Amendment, and the judgment of that court holding to the contrary is
34
Reversed.
35
Mr. Chief Justice BURGER, concurring.
36
I concur fully in the Court's opinion.
37
This is but another in a long line of cases in the federal courts raising questions concerning the authority of the States to regulate and administer matters peculiarly local in nature. Too often there is confusion as to what the Court decides in this type of case. The issue here, of course, is not whether prisoner "unions" are "good" or "bad," but, rather, whether the Federal Constitution prohibits state prison officials from deciding to exclude such organizations of inmates from prison society in their efforts to carry out one of the most vexing of all state responsibilities that of operating a penological institution. In determining that it does not, we do not suggest that prison officials could not or should not permit such inmate organizations, but only that the Constitution does not require them to do so.
38
The solutions to problems arising within correctional institutions will never be simple or easy. Prisons, by definition, are closed societies populated by individuals who have demonstrated their inability, or refusal, to conform their conduct to the norms demanded by a civilized society. Of necessity, rules far different from those imposed on society at large must prevail within prison walls. The federal courts, as we have often noted, are not equipped by experience or otherwise to "second guess" the decisions of state legislatures and administrators in this sensitive area except in the most extraordinary circumstances. This recognition, of course, does not imply that a prisoner is stripped of all constitutional protection as he passes through the prison's gates. Indeed, this Court has made clear on numerous occasions that the Constitution and other federal laws protect certain basic rights of inmates. E. g., Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Rather, it "reflects no more than a healthy sense of realism" on our part to understand that needed reforms in the area of prison administration must come, not from the federal courts, but from those with the most expertise in this field prison administrators themselves. See Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). And, in the last half dozen years, enlightened correctional administrators have made significant strides in the area of prison reform. Notable in this respect are the grievance procedures instituted by the Federal Bureau of Prisons* after pilot experiments, and now by a number of States including North Carolina, which permit inmates to register their complaints with penal officials and obtain nonjudicial relief. However, while I applaud such procedures, and indeed urged their adoption, W. Burger, Report on the Federal Judicial Branch 1973. 59 A.B.A.J. 1125 (1973), I do not suggest that the procedures are constitutionally mandated. Similarly, we do not pass today on the "social utility" of inmate organizations, whether they be characterized as "unions" or otherwise, but only on whether the Constitution requires prison officials to permit their operation.
39
Mr. Justice STEVENS, concurring in part and dissenting in part.
40
My disagreement with the Court is extremely narrow. The Court has not sanctioned a restraint on discussion between inmates on the relative advantages or disadvantages of belonging to a prisoners' union. The prohibition of inmate-to-inmate solicitation which the Court upholds is defined as "an invitation to collectively engage in a legitimately prohibited activity." Ante, at 132. The Court has made it clear that mere membership in a union is not such an activity, ante, at 128-129. The language of appellants' "no-solicitation regulation" is, however, somewhat broader.* Therefore, instead of concluding that the entire regulation is valid, ante, at 136, I would hold it invalid to the extent that it exceeds the Court's definition.
41
I join the portions of the Court's opinion concerning the bulk mailing and union meeting claims.
42
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
43
There was a time, not so very long ago, when prisoners were regarded as "slave(s) of the State," having "not only forfeited (their) liberty, but all (their) personal rights . . . " Ruffin v. Commonwealth, 62 Va. 790, 796 (1871). In recent years, however, the courts increasingly have rejected this view, and with it the corollary which holds that courts should keep their "hands off" penal institutions.1 Today, however, the Court, in apparent fear of a prison reform organization that has the temerity to call itself a "union," takes a giant step backwards toward that discredited conception of prisoners' rights and the role of the courts. I decline to join in what I hope will prove to be a temporary retreat.
44
* In Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), I set forth at some length my understanding of the First Amendment rights of prison inmates. The fundamental tenet I advanced is simply stated: "A prisoner does not shed . . . basic First Amendment rights at the prison gate. Rather, he 'retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law.' Coffin v. Reichard, 143 F.2d 443, 445 (CA6 1944)." Id., at 422, 94 S.Ct., at 1816 (concurring opinion). It follows from this tenet that a restriction on the First Amendment rights of prisoners, like a restriction on the rights of nonprisoners, "can only be justified by a substantial government interest and a showing that the means chosen to effectuate the State's purpose are not unnecessarily restrictive of personal freedoms." Id., at 423, 94 S.Ct., at 1816. This does not mean that any expressive conduct that would be constitutionally protected outside a prison is necessarily protected inside; as I also stated in Martinez: "The First Amendment must in each context 'be applied "in light of the special characteristics of the . . . environment," ' Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266 (1972), and the exigencies of governing persons in prisons are different from and greater than those in governing persons without." Id., at 424, 94 S.Ct., at 1816. But the basic mode of First Amendment analysis the requirement that restrictions on speech be supported by "reasons imperatively justifying the particular deprivation," ibid. should not be altered simply because the First Amendment claimants are incarcerated.
45
The Court today rejects this analytic framework, at least as it applies to the right of prisoners to associate in something called a prison "union."2 In testing restrictions on the exercise of that right the Court asks only whether the restrictions are "rationally related to the . . . objectives of prison administration," ante, at 129, and whether the reasons offered in defense of the restrictions have been "conclusively shown to be wrong," ante, at 132. While proclaiming faithfulness to the teaching of Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974), that " 'a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner,' " ante, at 125, the Court ultimately upholds the challenged regulations on a ground that would apply to any restriction on inmate freedom: they "are consistent with the inmates' status as prisoners," ante, at 130.
46
Nothing in the Court's opinion justifies its wholesale abandonment of traditional principles of First Amendment analysis. I realize, of course, that "the realities of running a penal institution are complex and difficult," ante, at 126, and that correctional officers possess considerably more " 'professional expertise' " ante, at 128, in prison management than do judges. I do not in any way minimize either the seriousness of the problems or the significance of the expertise. But it does seem to me that "the realities of running" a school or a city are also "complex and difficult," and that those charged with these tasks principals, college presidents, mayors, councilmen, and law enforcement personnel also possess special "professional expertise."3 Yet in no First Amendment case of which I am aware has the Court deferred to the judgment of such officials simply because their judgment was "rational." Cf. Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Cox v. Louisiana, 379 U.S. 536, 544-551, 85 S.Ct. 453, 458-462, 13 L.Ed.2d 471 (1965); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). I do not understand why a different rule should apply simply because prisons are involved.
47
The reason courts cannot blindly defer to the judgment of prison administrators or any other officials for that matter is easily understood. Because the prison administrator's business is to maintain order, "there inheres the danger that he may well be less responsive than a court part of an independent branch of government to the constitutionally protected interests in free expression." Freedman v. Maryland, 380 U.S. 51, 57-58, 85 S.Ct. 734, 738, 13 L.Ed.2d 649 (1965). A warden seldom will find himself subject to public criticism or dismissal because he needlessly repressed free speech; indeed, neither the public nor the warden will have any way of knowing when repression was unnecessary. But a warden's job can be jeopardized and public criticism is sure to come should disorder occur. Consequently, prison officials inevitably will err on the side of too little freedom. That this has occurred in the past is made clear by the recent report of the American Bar Association Joint Committee on the Legal Status of Prisoners:
48
"All organizations including correctional organizations overreact to suggested changes, whether sweeping or merely incremental. . . . (M)any of the fears voiced by prison officials in the 1960s to the growing tide of court determinations invalidating prison regulations have simply not come to pass; indeed, in several instances . . . those groups feared by the prisons in the 1960s have become stabilizing influences in the 1970s."4
49
I do not mean to suggest that the views of correctional officials should be cavalierly disregarded by courts called upon to adjudicate constitutional claims of prisoners. Far from it. The officials' views " 'constitute a body of experience and informed judgment to which courts . . . 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 . . . and all those factors which give it power to persuade . . .,' " General Electric Co. v. Gilbert, 429 U.S. 125, 142, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976), quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). My point is simply that the ultimate responsibility for evaluating the prison officials' testimony, as well as any other expert testimony, must rest with the courts, which are required to reach an independent judgment concerning the constitutionality of any restriction on expressive activity.
50
The approach I advocate is precisely the one this Court has followed in other cases involving the rights of prisoners. In Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), for example, the Court expressly acknowledged the rationality of the rule at issue which prohibited inmate writ writers from aiding fellow prisoners in preparing legal papers, id., at 488, 89 S.Ct., at 750. We nevertheless concluded that the rule was unconstitutional because of its impact on prisoners' right of access to the courts. In Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968), we did not even inquire whether segregating prisoners by race was rational, although it could be argued that integration in a southern prison would lead to disorder among inmates; we held that in any event segregation was prohibited by the Fourteenth Amendment. And in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); and Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972), we followed the approach of Lee. By word and deed, then, we have repeatedly reaffirmed that "a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims . . . . When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights." Procunier v. Martinez, 416 U.S., at 405, 94 S.Ct., at 1807-1808.
II
51
Once it is established that traditional First Amendment principles are applicable in prisoners'-rights cases, the dispute here is easily resolved. The three-judge court not only found that there was "not one scintilla of evidence to suggest that the Union had been utilized to disrupt the operation of the penal institutions," 409 F.Supp. 937, 944 (EDNC 1976), as the Court acknowledges, ante, at 127 n. 5, it also found no evidence "that the inmates intend to operate (the Union) to hamper and interfere with the proper interests of government," 409 F.Supp., at 944, or that the Union posed a "present danger to security and order," id., at 945. In the face of these findings, it cannot be argued that the restrictions on the Union are "imperatively justif(ied)."
52
The regulation barring inmates from soliciting fellow prisoners to join the Union is particularly vulnerable to attack. As the late Judge Craven stated for the court below: "To permit an inmate to join a union and forbid his inviting others to join borders on the irrational." Id., at 943. The irrationality of the regulation is perhaps best demonstrated by the fact that the Court does not defend it; rather, as my Brother STEVENS suggests, ante, at 138-139, the Court defends some hypothetical regulation banning " 'an invitation to collectively engage in a legitimately prohibited activity.' " Ante, at 132; see also ante, at 129 (discussing ban on "concerted group activity, or solicitation therefor"). Because the actual regulation at issue here needlessly bars solicitation for an activity joining the Union which is not and presumably could not be prohibited,5 I would hold it unconstitutional.
53
Once the rule outlawing solicitation is invalidated, the prohibition on bulk mailing by the Union must fall with it. Since North Carolina allows the Union to mail its newsletters to prisoners individually, the State cannot claim that the bulk mail rule serves to keep "subversive material" out of the prison. Rather, the primary purpose of the rule must be to supplement the ban on solicitation;6 overturning that ban would sap all force from the rationale for excluding bulk mailings. The exclusion would then be left as one that unnecessarily increases the cost to the Union of exercising its First Amendment rights7 while allowing other inmate groups such as the Jaycees to exercise their rights at a lower price. It would, therefore, be plainly unconstitutional.
54
The regulation prohibiting the Union from holding meetings within the prison is somewhat more justifiable than the regulations previously considered. Once the union is permitted to hold meetings it will become operational within the prisons. Appellants' fears that the leaders of an operating union "would be in a position to misuse their influence" and that the Union itself could engage in disruptive, concerted activities or increase tension within the prisons, App. 121, are not entirely fanciful. It is important to note, however, that appellee's two expert witnesses, both correctional officers who had dealt with inmate reform organizations, testified that such groups actually play a constructive role in their prisons, id., at 38, 90-95. The weight of professional opinion seems to favor recognizing such groups.8 Moreover, the risks appellants fear are inherent in any inmate organization, no matter how innocuous its stated goals; indeed, even without any organizations some inmates inevitably will become leaders capable of "misus(ing) their influence," id., at 84-86, 102-103,9 and some concerted activity can still occur. Id., at 118-119.
55
But even if the risks posed by the Union were unique to it, and even if appellants' fear of the Union were more widely shared by other professionals, the prohibition on Union meetings still could not survive constitutional attack. The central lesson of over a half century of First Amendment adjudication is that freedom is sometimes a hazardous enterprise, and that the Constitution requires the State to bear certain risks to preserve our liberty. See, e. g., Whitney v. California, 274 U.S. 357, 375-378, 47 S.Ct. 641, 648-649, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring); Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). As the ABA Joint Committee, supra, put it: "The doubts and risks raised by creating a humane and open prison must be accepted as a cost of our society; democracy is self-definitionally a risk-taking form of government."10 To my mind, therefore, the fact that appellants have not acted wholly irrationally in banning Union meetings is not dispositive. Rather, I believe that where, as here, meetings would not pose an immediate and substantial threat to the security or rehabilitative functions of the prisons, the First Amendment guarantees Union members the right to associate freely, and the Fourteenth Amendment guarantees them the right to be treated as favorably as members of other inmate organizations. The State can surely regulate the time, place, and manner of the meetings, and perhaps can monitor them to assure that disruptions are not planned, but the State cannot outlaw such assemblies altogether.
III
56
If the mode of analysis adopted in today's decision were to be generally followed, prisoners eventually would be stripped of all constitutional rights, and would retain only those privileges that prison officials, in their "informed discretion," deigned to recognize. The sole constitutional constraint on prison officials would be a requirement that they act rationally. Ironically, prisoners would be left with a right of access to the courts, see Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), but no substantive rights to assert once they get there. I cannot believe that the Court that decided Bounds and Johnson the Court that has stated that "(t)here is no iron curtain drawn between the Constitution and the prisons of this country." Wolff v. McDonnell, 418 U.S., at 555-556, 94 S.Ct., at 2974, and that "(a) prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner," Pell v. Procunier, 417 U.S., at 822, 94 S.Ct., at 2804 intends to allow this to happen. I therefore believe that the tension between today's decision and our prior cases ultimately will be resolved, not by the demise of the earlier cases, but by the recognition that the decision today is an aberration, a manifestation of the extent to which the very phrase "prisoner union" is threatening to those holding traditional conceptions of the nature of penal institutions.
57
I respectfully dissent.
1
These are the corporation purposes listed in the Articles of Incorporation issued by the Secretary of State of North Carolina. Collective bargaining for inmates with respect to pay, hours of employment, and other terms and conditions of incarceration is illegal under N.C.Gen.Stat. § 95-98 (1975).
2
Other allegations were contained in the complaint, respecting the opening of outgoing prison mail and the interference with visitation rights of certain paralegals. These specific allegations are not before us, and we will not deal with them further.
3
Appellants were enjoined as follows:
"(1) Inmates and all other persons shall be permitted to solicit and invite other inmates to join the plaintiff Union orally or by written or printed communication; provided, however, that access to inmates by outsiders solely for the purpose of soliciting membership may be denied except that inmate members of the Union may become entitled to be visited by free persons who are engaged with them in legitimate Union projects to the same extent that other members of free society are admitted for like purposes.
"(2) Free persons otherwise entitled to visitation with inmates, be they attorneys, paralegals, friends, relatives, etc. shall not be denied access to such visitation by reason of their association or affiliation with the Union.
"(3) The Union shall be accorded the privilege of bulk mailing to the extent that such a privilege is accorded other organizations.
"(4) The Union and its inmate members shall be accorded the privilege of holding meetings under such limitations and control as are neutrally applied to all inmate organizations, and to the extent that other meetings of prisoners are permitted."
4
The District Court observed that "it is clear beyond argument that no association of prisoners may operate as a true labor union . . . ." It concluded that "it (is) of no legal significance that the charter purports to authorize more than can lawfully be accomplished." 409 F.Supp. 937, 940 n. 1. But, whether or not illegal activity was actually actively pursued by the Union, it is clear that its announced purpose to engage in collective bargaining is a factor which prison officials may legitimately consider in determining whether the Union is likely to be a disruptive influence, or otherwise detrimental to the effective administration of the North Carolina prison system.
5
The District Court did hold that there was "not one scintilla of evidence to suggest that the Union has been utilized to disrupt the operation of the penal institutions." Id., at 944. This historical finding, however, does not state that appellants' fears as to future disruptions are groundless; there, the court indicated the opposite: "On conflicting expert opinion evidence we are left with no firm conviction that an association of inmates is necessarily good or bad . . . ." Id., at 943.
6
The State has not hampered the ability of prison inmates to communicate their grievances to correctional officials. In banning Union solicitation or organization, appellants have merely affected one of several ways in which inmates may voice their complaints to, and seek relief, from prison officials. There exists an inmate grievance procedure through which correctional officials are informed about complaints concerning prison conditions, and through which remedial action may be secured. See Affidavit of Director Edwards, App. 127. With this presumably effective path available for the transmission of grievances, the fact that the Union's grievance procedures might be more "desirable" does not convert the prohibitory regulations into unconstitutional acts. See Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974); cf. Greer v. Spock, 424 U.S. 828, 847, 98 S.Ct. 1211, 1222, 47 L.Ed.2d 505 (1976) (POWELL, J., concurring).
7
The complaint alleged only that the bulk mail prohibition denied the Union equal protection of the laws:
"The refusal by Defendants to allow the Prisoners' Union Newsletter to arrive in bundles for distribution, while allowing the Jaycee Newsletter to arrive in the same manner violates Plaintiff's Fourteenth Amendment right to equal protection of the laws."
The District Court, likewise, dealt with the bulk mail question only in terms of the Equal Protection Clause of the Fourteenth Amendment. 409 F.Supp., at 944.
8
The ban on bulk mailing by the Union does not extend to individual mailings to individual inmates. In his affidavit, Director Edwards stated:
"They are permitted to receive publications sent to them directly, but they are prohibited from receiving packets of material from unions or any other source for redistribution. This is in accordance with the Department's policy requiring publication(s) mailed to inmates to be sent directly from the publisher. A serious security problem would result if inmates could receive packets of material and then redistribute them as they see fit. It would be impossible for the Department to inspect every magazine, every book, etc., to insure that no contraband had been placed inside the publication. The exception in regard to Jaycees is based on the recognized fact that the Jaycees are substantial citizens from the free community who are most unlikely to attempt to smuggle contraband into the union or disseminate propaganda subversive of the legitimate purposes of the prison system." App. 129.
See also N.C. Department of Correction Guidebook, Commissioner's Administrative Directives Publications Received by Inmates, App. 138-139. As the State has disavowed any intention of interfering with correspondence between outsiders and individual inmates in which Union matters are discussed, we do not have to discuss questions of the First Amendment right of inmates, or outsiders, see Procunier v. Martinez, supra, 416 U.S., at 408-409, 94 S.Ct., at 1809, in the context of a total prohibition on the communication of information about the Union. The District Court apparently thought that solicitation by means of correspondence is prohibited, even if the general discussion of Union affairs is not, 409 F.Supp., at 941. The Union does not press this point here, and it is not alleged in its complaint, but, clearly, if the appellants are permitted to prohibit solicitation activities, they may prohibit solicitation activities by means which use the mails.
9
The informed discretion of prison officials that there is potential danger may be sufficient for limiting rights even though this showing might be "unimpressive if . . . submitted as justification for governmental restriction of personal communication among members of the general public." Pell v. Procunier, 417 U.S., 817, 825, 94 S.Ct. 2800, 2805, 41 L.Ed.2d 495 (1974).
10
Director Edwards listed the objectives for which the Jaycees had been allowed within the North Carolina prison system, namely the "productive association (of inmates) with stable community representatives and the accomplishment of service projects to the community . . .." When these objectives cease, "the functions of the organization and its opportunities to assemble as an organization would also cease." Affidavit of Director Edwards, App. 125. With respect to Alcoholics Anonymous, he stated, id., at 126:
"The objectives of the Alcoholics Anonymous Program are to provide therapeutic support, insight, and an opportunity for productive sharing of experiences among those who have encountered the deteriorative effects of alcoholism. Alcoholics Anonymous is structured on a peer pressure basis which begins while the individual client is confined and is intended to have carry over effects into Alcoholic Anonymous groups in the free community."
11
With respect to Alcoholics Anonymous and the Jaycees, Director Edwards stated, ibid.:
"The goals and the objectives of (both) the Alcoholics Anonymous and the Jaycee Program were presented to correctional staff as meaningful courses of action with positive goals relative to the productive restoration of offenders to active, lawful participation in the community. The goals of both organizations (were) scrutinized, evaluated, and approved. Operational guidelines have been drawn up in each instance following approval to certify that the primary objective of the correctional system to maintain order and security would not be abridged by the operation of these programs within the confines of prison units."
Opposed to these articulated reasons for allowing these groups is his statement with respect to the Union, ibid.:
"The Division of Prisons was unable to validate a substantive rehabilitation purpose or associative purpose in the design of the organization. To accept the organizational objectives of a prisoner's union would be to approve an organization whose design and purpose would compromise the order and security of the correctional system."
See also supra, at 127.
12
See n. 1, supra. It was acknowledged at oral argument that the Union newsletter has since reiterated the Union's goal, as stated in the charter, and that the newsletter has contained authorization cards whereby the inmate could "authorize the agents or representatives of said Union to represent me and to act as a collective bargaining agent in all matters pertaining to rates of pay, hours of employment and all other terms and conditions of incarceration." Record 25. See Tr. of Oral Arg. 31, 34-35.
*
Statistics compiled by the Federal Bureau of Prisons indicate that in 1975 alone, more than 5,000 complaints by inmates were brought to the attention of federal prison officials pursuant to the grievance procedures. Approximately one-fourth of these complaints were ultimately resolved in favor of the inmate. Preliminary figures for 1976 indicate an even greater utilization of the grievance procedures; it is estimated that more than 10,000 complaints were registered by inmates during that year. Brief for United States as Amicus Curiae, 31-32, n. 15. The development of this grievance procedure appears to have slowed down the rate of growth of federal prisoner petitions filed in the federal district courts. 1975 Annual Report of the Director, Administrative Office of the United States Courts XI48-XI51.
*
"Persons in the custody of the Department of Correction are prohibited from soliciting other inmates about membership in any inmate union." Jurisdictional Statement 38.
1
For brief exposition of the "hands-off" doctrine and its demise, see Fox, The First Amendment Rights of Prisoners, 63 J.Crim.L.C. & P.S. 162 (1972).
2
That the First Amendment protects the right to associate is by now well established. See, e. g., Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).
3
Similarly, prison administrators, principals, college presidents, and the like "must be permitted to act before the time when they can compile a dossier on the eve of a riot." Ante, at 132-133.
4
ABA Joint committee on the Legal Status of Prisoners, The Legal Status of Prisoners (Tent. Draft 1977), in 14 Am.Crim.L.Rev. 377, 419 (1977) (hereafter ABA Joint Committee report).
5
I express no view concerning the extent to which orderly, concerted activities are protected in prison. This issue has been addressed at length by the ABA Joint Committee report, Standard § 6.4 and Commentary.
6
The only other justification offered for the rule is to prevent contraband from being smuggled into the prisons. Nothing in the record remotely suggests that the outside personnel associated with the Union would use bulk mailing for this purpose. Moreover, the solution to the alleged contraband danger is to inspect the bulk mailings, not to prohibit them.
7
Contrary to the Court's assertion, ante, at 130-131, free speech values most definitely are implicated by a regulation whose purpose and effect is to make the exercise of First Amendment rights costly. Cf., e. g., Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936).
8
See ABA Joint Committee report, Standard § 6.4 and Commentary; S. Krantz, R. Bell, J. Brant, & M. Magruder, Model Rules and Regulations on Prisoners' Rights and Responsibilities, Rules IA-1b, IA-5 and Commentary (1973); National Advisory Commission on Criminal Justice Standards and Goals, Corrections, Standard 2.15 and Commentary, pp. 58-61 (1973).
9
See also Note, Bargaining in Correctional Institutions: Restructuring the Relation between the Inmate and the Prison Authority, 81 Yale L.J. 726 (1972). The concern over inmate leadership has been advanced to oppose numerous prison reforms. E. g., Johnson v. Avery, 393 U.S. 483, 499, 89 S.Ct. 747, 755-756, 21 L.Ed.2d 718 (1969) (WHITE, J., dissenting); Saxbe v. Washington Post Co., 417 U.S. 843, 866-869, 94 S.Ct. 2811, 2823-2824, 41 L.Ed.2d 514 (1974) (POWELL, J., dissenting) (rejecting argument).
10
ABA Joint Committee report 419.
| 23
|
433 U.S. 36
97 S.Ct. 2549
53 L.Ed.2d 568
CONTINENTAL T. V., INC., et al., Petitioners,v.GTE SYLVANIA INCORPORATED.
No. 76-15.
Argued Feb. 28, 1977.
Decided June 23, 1977.
Syllabus
In an attempt to improve its market position by attracting more aggressive and competent retailers, respondent manufacturer of television sets limited the number of retail franchises granted for any given area and required each franchisee to sell respondent's products only from the location or locations at which it was franchised. Petitioner Continental, one of respondent's franchised retailers, claimed that respondent had violated § 1 of the Sherman Act by entering into and enforcing franchise agreements that prohibited the sale of respondent's products other than from specified locations. The District Court rejected respondent's requested jury instruction that the location restriction was illegal only if it unreasonably restrained or suppressed competition. Instead, relying on United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249, the District Court instructed the jury that it was a per se violation of § 1 if respondent entered into a contract, combination, or conspiracy with one or more of its retailers, pursuant to which it attempted to restrict the locations from which the retailers resold the merchandise they had purchased from respondent. The jury found that the location restriction violated § 1, and treble damages were assessed against respondent. Concluding that Schwinn was distinguishable, the Court of Appeals reversed, holding that respondent's location restriction had less potential for competitive harm than the restrictions invalidated in Schwinn and thus should be judged under the "rule of reason." Held:
1. The statement of the per se rule in Schwinn is broad enough to cover the location restriction used by respondent. And the retail-customer restriction in Schwinn is functionally indistinguishable from the location restriction here, the restrictions in both cases limiting the retailer's freedom to dispose of the purchased products and reducing, but not eliminating, intrabrand competition. Pp. 42-47.
2. The justification and standard for the creation of per se rules was stated in Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545: "There are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use." Under this standard, there is no justification for the distinction drawn in Schwinn between restrictions imposed in sale and nonsale transactions. Similarly, the facts of this case do not present a situation justifying a per se rule. Accordingly, the per se rule stated in Schwinn is overruled, and the location restriction used by respondent should be judged under the traditional rule-of-reason standard. Pp. 47-59.
537 F.2d 980, affirmed.
Glenn E. Miller, San Jose, Cal., for petitioners.
M. Laurence Popofsky, San Francisco, Cal., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
Franchise agreements between manufacturers and retailers frequently include provisions barring the retailers from selling franchised products from locations other than those specified in the agreements. This case presents important questions concerning the appropriate antitrust analysis of these restrictions under § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1, and the Court's decision in United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967).
2
* Respondent GTE Sylvania Inc. (Sylvania) manufactures and sells television sets through its Home Entertainment Products Division. Prior to 1962, like most other television manufacturers, Sylvania sold its televisions to independent or company-owned distributors who in turn resold to a large and diverse group of retailers. Prompted by a decline in its market share to a relatively insignificant 1% to 2% of national television sales,1 Sylvania conducted an intensive reassessment of its marketing strategy, and in 1962 adopted the franchise plan challenged here. Sylvania phased out its wholesale distributors and began to sell its televisions directly to a smaller and more select group of franchised retailers. An acknowledged purpose of the change was to decrease the number of competing Sylvania retailers in the hope of attracting the more aggressive and competent retailers thought necessary to the improvement of the company's market position.2 To this end, Sylvania limited the number of franchises granted for any given area and required each franchisee to sell his Sylvania products only from the location or locations at which he was franchised.3 A franchise did not constitute an exclusive territory, and Sylvania retained sole discretion to increase the number of retailers in an area in light of the success or failure of existing retailers in developing their market. The revised marketing strategy appears to have been successful during the period at issue here, for by 1965 Sylvania's share of national television sales had increased to approximately 5%, and the company ranked as the Nation's eighth largest manufacturer of color television sets.
3
This suit is the result of the rupture of a franchiser-franchisee relationship that had previously prospered under the revised Sylvania plan. Dissatisfied with its sales in the city of San Francisco,4 Sylvania decided in the spring of 1965 to franchise Young Brothers, an established San Francisco retailer of televisions, as an additional San Francisco retailer. The proposed location of the new franchise was approximately a mile from a retail outlet operated by petitioner Continental T. V., Inc. (Continental), one of the most successful Sylvania franchisees.5 Continental protested that the location of the new franchise violated Sylvania's marketing policy, but Sylvania persisted in its plans. Continental then canceled a large Sylvania order and placed a large order with Phillips, one of Sylvania's competitors.
4
During this same period, Continental expressed a desire to open a store in Sacramento, Cal., a desire Sylvania attributed at least in part to Continental's displeasure over the Young Brothers decision. Sylvania believed that the Sacramento market was adequately served by the existing Sylvania retailers and denied the request.6 In the face of this denial, Continental advised Sylvania in early September 1965, that it was in the process of moving Sylvania merchandise from its San Jose, Cal., warehouse to a new retail location that it had leased in Sacramento. Two weeks later, allegedly for unrelated reasons, Sylvania's credit department reduced Continental' s credit line from $300,000 to $50,000.7 In response to the reduction in credit and the generally deteriorating relations with Sylvania, Continental withheld all payments owed to John P. Maguire & Co., Inc. (Maguire), the finance company that handled the credit arrangements between Sylvania and its retailers. Shortly thereafter, Sylvania terminated Continental's franchises, and Maguire filed this diversity action in the United States District Court for the Northern District of California seeking recovery of money owed and of secured merchandise held by Continental.
5
The antitrust issues before us originated in cross-claims brought by Continental against Sylvania and Maguire. Most important for our purposes was the claim that Sylvania had violated § 1 of the Sherman Act by entering into and enforcing franchise agreements that prohibited the sale of Sylvania products other than from specified locations.8 At the close of evidence in the jury trial of Continental's claims, Sylvania requested the District Court to instruct the jury that its location restriction was illegal only if it unreasonably restrained or suppressed competition. App. 5-6, 9-15. Relying on this Court's decision in United States v. Arnold, Schwinn & Co., supra, the District Court rejected the proffered instruction in favor of the following one:
6
"Therefore, if you find by a preponderance of the evidence that Sylvania entered into a contract, combination or conspiracy with one or more of its dealers pursuant to which Sylvania exercised dominion or control over the products sold to the dealer, after having parted with title and risk to the products, you must find any effort thereafter to restrict outlets or store locations from which its dealers resold the merchandise which they had purchased from Sylvania to be a violation of Section 1 of the Sherman Act, regardless of the reasonableness of the location restrictions." App. 492.
7
In answers to special interrogatories, the jury found that Sylvania had engaged "in a contract, combination or conspiracy in restraint of trade in violation of the antitrust laws with respect to location restrictions alone," and assessed Continental's damages at $591,505, which was trebled pursuant to 15 U.S.C. § 15 to produce an award of.$1,774,515. App. 498, 501.9
8
On appeal, the Court of Appeals for the Ninth Circuit, sitting en banc, reversed by a divided vote. 537 F.2d 980 (1976). The court acknowledged that there is language in Schwinn that could be read to support the District Court's instruction but concluded that Schwinn was distinguishable on several grounds. Contrasting the nature of the restrictions, their competitive impact, and the market shares of the franchisers in the two cases, the court concluded that Sylvania's location restriction had less potential for competitive harm than the restrictions invalidated in Schwinn and thus should be judged under the "rule of reason" rather than the per se rule stated in Schwinn. The court found support for its position in the policies of the Sherman Act and in the decisions of other federal courts involving nonprice vertical restrictions.10
9
We granted Continental's petition for certiorari to resolve this important question of antitrust law. 429 U.S. 893, 97 S.Ct. 252, 50 L.Ed.2d 176 (1976).11
II
A.
10
We turn first to Continental's contention that Sylvania's restriction on retail locations is a per se violation of § 1 of the Sherman Act as interpreted in Schwinn. The restrictions at issue in Schwinn were part of a three-tier distribution system comprising, in addition to Arnold, Schwinn & Co. (Schwinn), 22 intermediate distributors and a network of franchised retailers. Each distributor had a defined geographic area in which it had the exclusive right to supply franchised retailers. Sales to the public were made only through franchised retailers, who were authorized to sell Schwinn bicycles only from specified locations. In support of this limitation, Schwinn prohibited both distributors and retailers from selling Schwinn bicycles to nonfranchised retailers. At the retail level, therefore, Schwinn was able to control the number of retailers of its bicycles in any given area according to its view of the needs of that market.
11
As of 1967 approximately 75% of Schwinn's total sales were made under the "Schwinn Plan." Acting essentially as a manufacturer's representative or sales agent, a distributor participating in this plan forwarded orders from retailers to the factory. Schwinn then shipped the ordered bicycles directly to the retailer, billed the retailer, bore the credit risk, and paid the distributor a commission on the sale. Under the Schwinn Plan, the distributor never had title to or possession of the bicycles. The remainder of the bicycles moved to the retailers through the hands of the distributors. For the most part, the distributors functioned as traditional wholesalers with respect to these sales, stocking an inventory of bicycles owned by them to supply retailers with emergency and "fill-in" requirements. A smaller part of the bicycles that were physically distributed by the distributors were covered by consignment and agency arrangements that had been developed to deal with particular problems of certain distributors. Distributors acquired title only to those bicycles that they purchased as wholesalers; retailers, of course, acquired title to all of the bicycles ordered by them.
12
In the District Court, the United States charged a continuing conspiracy by Schwinn and other alleged co-conspirators to fix prices, allocate exclusive territories to distributors, and confine Schwinn bicycles to franchised retailers. Relying on United States v. Bausch & Lomb Co., 321 U.S. 707, 64 S.Ct. 805, 88 L.Ed. 1024 (1944), the Government argued that the nonprice restrictions were per se illegal as part of a scheme for fixing the retail prices of Schwinn bicycles. The District Court rejected the price-fixing allegation because of a failure of proof and held that Schwinn's limitation of retail bicycle sales to franchised retailers was permissible under § 1. The court found a § 1 violation, however, in "a conspiracy to divide certain borderline or overlapping counties in the territories served by four Midwestern cycle distributors." 237 F.Supp. 323, 342 (ND Ill.1965). The court described the violation as a "division of territory by agreement between the distributors . . . horizontal in nature," and held that Schwinn's participation did not change that basic characteristic. Ibid. The District Court limited its injunction to apply only to the territorial restrictions on the resale of bicycles purchased by the distributors in their roles as wholesalers. Ibid.
13
Schwinn came to this Court on appeal by the United States from the District Court's decision. Abandoning its per se theories, the Government argued that Schwinn's prohibition against distributors' and retailers' selling Schwinn bicycles to nonfranchised retailers was unreasonable under § 1 and that the District Court's injunction against exclusive distributor territories should extend to all such restrictions regardless of the form of the transaction. The Government did not challenge the District Court's decision on price fixing, and Schwinn did not challenge the decision on exclusive distributor territories.
14
The Court acknowledged the Government's abandonment of its per se theories and stated that the resolution of the case would require an examination of "the specifics of the challenged practices and their impact upon the marketplace in order to make a judgment as to whether the restraint is or is not 'reasonable' in the special sense in which § 1 of the Sherman Act must be read for purposes of this type of inquiry." 388 U.S., at 374, 87 S.Ct., at 1863. Despite this description of its task, the Court proceeded to articulate the following "bright line" per se rule of illegality for vertical restrictions: "Under the Sherman Act, it is unreasonable without more for a manufacturer to seek to restrict and confine areas or persons with whom an article may be traded after the manufacturer has parted with dominion over it." Id., at 379, 87 S.Ct., at 1865. But the Court expressly stated that the rule of reason governs when "the manufacturer retains title, dominion, and risk with respect to the product and the position and function of the dealer in question are, in fact, indistinguishable from those of an agent or salesman of the manufacturer." Id., at 380, 87 S.Ct., at 1866.
15
Application of these principles to the facts of Schwinn produced sharply contrasting results depending upon the role played by the distributor in the distribution system. With respect to that portion of Schwinn's sales for which the distributors acted as ordinary wholesalers, buying and reselling Schwinn bicycles, the Court held that the territorial and customer restrictions challenged by the Government were per se illegal. But, with respect to that larger portion of Schwinn's sales in which the distributors functioned under the Schwinn Plan and under the less common consignment and agency arrangements, the Court held that the same restrictions should be judged under the rule of reason. The only retail restriction challenged by the Government prevented franchised retailers from supplying nonfranchised retailers. Id., at 377, 87 S.Ct., at 1864. The Court apparently perceived no material distinction between the restrictions on distributors and retailers, for it held:
16
"The principle is, of course, equally applicable to sales to retailers, and the decree should similarly enjoin the making of any sales to retailers upon any condition, agreement or understanding limiting the retailer's freedom as to where and to whom it will resell the products." Id., at 378, 87 S.Ct., at 1865.
17
Applying the rule of reason to the restrictions that were not imposed in conjunction with the sale of bicycles, the Court had little difficulty finding them all reasonable in light of the competitive situation in "the product market as a whole." Id., at 382, 87 S.Ct., at 1867.
B
18
In the present case, it is undisputed that title to the television sets passed from Sylvania to Continental. Thus, the Schwinn per se rule applies unless Sylvania's restriction on locations falls outside Schwinn's prohibition against a manufacturer's attempting to restrict a "retailer's freedom as to where and to whom it will resell the products." Id., at 378, 87 S.Ct., at 1865. As the Court of Appeals conceded, the language of Schwinn is clearly broad enough to apply to the present case. Unlike the Court of Appeals, however, we are unable to find a principled basis for distinguishing Schwinn from the case now before us.
19
Both Schwinn and Sylvania sought to reduce but not to eliminate competition among their respective retailers through the adoption of a franchise system. Although it was not one of the issues addressed by the District Court or presented on appeal by the Government, the Schwinn franchise plan included a location restriction similar to the one challenged here. These restrictions allowed Schwinn and Sylvania to regulate the amount of competition among their retailers by preventing a franchisee from selling franchised products from outlets other than the one covered by the franchise agreement. To exactly the same end, the Schwinn franchise plan included a companion restriction, apparently not found in the Sylvania plan, that prohibited franchised retailers from selling Schwinn products to nonfranchised retailers. In Schwinn the Court expressly held that this restriction was impermissible under the broad principle stated there. In intent and competitive impact, the retail-customer restriction n Schwinn is indistinguishable from the location restriction in the present case. In both cases the restrictions limited the freedom of the retailer to dispose of the purchased products as he desired. The fact that one restriction was addressed to territory and the other to customers is irrelevant to functional anti-trust analysis, and indeed, to the language and broad thrust of the opinion in Schwinn.12 As Mr. Chief Justice Hughes stated in Appalachian Coals, Inc. v. United States, 288 U.S. 344, 360, 377, 53 S.Ct. 471, 474, 480, 77 L.Ed. 825 (1933): "Realities must dominate the judgment. . . . The Anti-Trust Act aims at substance."
III
20
Sylvania argues that if Schwinn cannot be distinguished, it should be reconsidered. Although Schwinn is supported by the principle of stare decisis, Illinois Brick Co. v. Illinois, 431 U.S. 720, 736, 97 S.Ct. 2061, 2070, 52 L.Ed.2d 707 (1977), we are convinced that the need for clarification of the law in this area justifies reconsideration. Schwinn itself was an abrupt and largely unexplained departure from White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963), where only four years earlier the Court had refused to endorse a per se rule for vertical restrictions. Since its announcement, Schwinn has been the subject of continuing controversy and confusion, both in the scholarly journals and in the federal courts. The great weight of scholarly opinion has been critical of the decision,13 and a number of the federal courts confronted with analogous vertical restrictions have sought to limit its reach.14 In our view, the experience of the past 10 years should be brought to bear on this subject of considerable commercial importance.
21
(1-3) The traditional framework of analysis under § 1 of the Sherman Act is familiar and does not require extended discussion. Section 1 prohibits "(e) very contract, combination . . ., or conspiracy, in restraint of trade or commerce." Since the early years of this century a judicial gloss on this statutory language has established the "rule of reason" as the prevailing standard of analysis. Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). Under this rule, the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.15 Per se rules of illegality are appropriate only when they relate to conduct that is manifestly anticompetitive. As the Court explained in Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), "there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use."16
22
In essence, the issue before us is whether Schwinn's per se rule can be justified under the demanding standards of Northern Pac. R. Co. The Court's refusal to endorse a per se rule in White Motor Co. was based on its uncertainty as to whether vertical restrictions satisfied those standards. Addressing this question for the first time, the Court stated:
23
"We need to know more than we do about the actual impact of these arrangements on competition to decide whether they have such a 'pernicious effect on competition and lack . . . any redeeming virtue' (Northern Pac. R. Co. v. United States, supra, 356 U.S. p. 5, 78 S.Ct. 514) and therefore should be classified as per se violations of the Sherman Act." 372 U.S., at 263, 83 S.Ct., at 702.
24
Only four years later the Court in Schwinn announced its sweeping per se rule without even a reference to Northern Pac. R. Co. and with no explanation of its sudden change in position.17 We turn now to consider Schwinn in light of Northern Pac. R. Co.
25
The market impact of vertical restrictions18 is complex because of their potential for a simultaneous reduction of intrabrand competition and stimulation of interbrand competition. 19 Significantly, the Court in Schwinn did not distinguish among the challenged restrictions on the basis of their individual potential for intrabrand harm or interbrand benefit. Restrictions that completely eliminated intrabrand competition among Schwinn distributors were analyzed no differently from those that merely moderated intrabrand competition among retailers. The pivotal factor was the passage of title: All restrictions were held to be per se illegal where title had passed, and all were evaluated and sustained under the rule of reason where it had not. The location restriction at issue here would be subject to the same pattern of analysis under Schwinn.
26
It appears that this distinction between sale and nonsale transactions resulted from the Court's effort to accommodate the perceived intrabrand harm and interbrand benefit of vertical restrictions. The per se rule for sale transactions reflected the view that vertical restrictions are "so obviously destructive" of intrabrand competition20 that their use would "open the door to exclusivity of outlets and limitation of territory further than prudence permits." 388 U.S., at 379-380, 87 S.Ct., at 1865-1866.21 Conversely, the continued adherence to the traditional rule of reason for nonsale transactions reflected the view that the restrictions have too great a potential for the promotion of interbrand competition to justify complete prohibition.22 The Court's opinion provides no analytical support for these contrasting positions. Nor is there even an assertion in the opinion that the competitive impact of vertical restrictions is significantly affected by the form of the transaction. Non-sale transactions appear to be excluded from the per se rule, not because of a greater danger of intrabrand harm or a greater promise of interbrand benefit, but rather because of the Court's unexplained belief that a complete per se prohibition would be too "inflexibl(e)." Id., at 379, 87 S.Ct., at 1865.
27
Vertical restrictions reduce intrabrand competition by limiting the number of sellers of a particular product competing for the business of a given group of buyers. Location restrictions have this effect because of practical constraints on the effective marketing area of retail outlets. Although intrabrand competition may be reduced, the ability of retailers to exploit the resulting market may be limited both by the ability of consumers to travel to other franchised locations and, perhaps more importantly, to purchase the competing products of other manufacturers. None of these key variables, however, is affected by the form of the transaction by which a manufacturer conveys his products to the retailers.
28
Vertical restrictions promote interbrand competition by allowing the manufacturer to achieve certain efficiencies in the distribution of his products. These "redeeming virtues" are implicit in every decision sustaining vertical restrictions under the rule of reason. Economists have identified a number of ways in which manufacturers can use such restrictions to compete more effectively against other manufacturers. See, e. g., Preston, Restrictive Distribution Arrangements: Economic Analysis and Public Policy Standards, 30 Law & Contemp.Prob. 506, 511 (1965).23 For example, new manufacturers and manufacturers entering new markets can use the restrictions in order to induce competent and aggressive retailers to make the kind of investment of capital and labor that is often required in the distribution of products unknown to the consumer. Established manufacturers can use them to induce retailers to engage in promotional activities or to provide service and repair facilities necessary to the efficient marketing of their products. Service and repair are vital for many products, such as automobiles and major household appliances. The availability and quality of such services affect a manufacturer's goodwill and the competitiveness of his product. Because of market imperfections such as the so-called "free rider" effect, these services might not be provided by retailers in a purely competitive situation, despite the fact that each retailer's benefit would be greater if all provided the services than if none did. Posner, supra, n. 13, at 285; cf. P. Samuelson, Economics 506-507 (10th ed. 1976).
29
Economists also have argued that manufacturers have an economic interest in maintaining as much intrabrand competition as is consistent with the efficient distribution of their products. Bork, The Rule of Reason and the Per Se Concept: Price Fixing and the Market Division (II), 75 Yale L.J. 373, 403 (1966); Posner, supra, n. 13, at 283, 287-288.24 Although the view that the manufacturer's interest necessarily corresponds with that of the public is not universally shared, even the leading critic of vertical restrictions concedes that Schwinn's distinction between sale and nonsale transactions is essentially unrelated to any relevant economic impact. Comanor, Vertical Territorial and Customer Restrictions: White Motor and Its Aftermath, 81 Harv.L.Rev. 1419, 1422 (1968).25 Indeed, to the extent that the form of the transaction is related to interbrand benefits, the Court's distinction is inconsistent with its articulated concern for the ability of smaller firms to compete effectively with larger ones. Capital requirements and administrative expenses may prevent smaller firms from using the exception for nonsale transactions. See, e. g., Baker, supra, n. 13, at 538; Phillips, Schwinn Rules and the "New Economics" of Vertical Relation, 44 Antitrust L.J. 573, 576 (1975); Pollock, supra, n. 13, at 610.26
30
(4) We conclude that the distinction drawn in Schwinn between sale and nonsale transactions is not sufficient to justify the application of a per se rule in one situation and a rule of reason in the other. The question remains whether the per se rule stated in Schwinn should be expanded to include non-sale transactions or abandoned in favor of a return to the rule of reason. We have found no persuasive support for expanding the per se rule. As noted above, the Schwinn Court recognized the undesirability of "prohibit(ing) all vertical restrictions of territory and all franchising . . .." 388 U.S., at 379-380, 87 S.Ct., at 1866.27 And even Continental does not urge us to hold that all such restrictions are per se illegal.
31
(5, 6) We revert to the standard articulated in Northern Pac. R. Co., and reiterated in White Motor, for determining whether vertical restrictions must be "conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use." 356 U.S., at 5, 78 S.Ct., at 518. Such restrictions, in varying forms, are widely used in our free market economy. As indicated above, there is substantial scholarly and judicial authority supporting their economic utility. There is relatively little authority to the contrary.28 Certainly, there has been no showing in this case, either generally or with respect to Sylvania's agreements, that vertical restrictions have or are likely to have a "pernicious effect on competition" or that they "lack . . . any redeeming virtue." Ibid.29 Accordingly, we conclude that the per se rule stated in Schwinn must be overruled.30 In so holding we do not foreclose the possibility that particular applications of vertical restrictions might justify per se prohibition under Northern Pac. R. Co. But we do make clear that departure from the rule-of-reason standard must be based upon demonstrable economic effect rather than as in Schwinn upon formalistic line drawing.
32
(7) In sum, we conclude that the appropriate decision is to return to the rule of reason that governed vertical restrictions prior to Schwinn. When anticompetitive effects are shown to result from particular vertical restrictions they can be adequately policed under the rule of reason, the standard traditionally applied for the majority of anticompetitive practices challenged under § 1 of the Act. Accordingly, the decision of the Court of Appeals is
33
Affirmed.
34
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
35
Mr. Justice WHITE, concurring in the judgment.
36
Although I agree with the majority that the location clause at issue in this case is not a per se violation of the Sherman Act and should be judged under the rule of reason, I cannot agree that this result requires the overruling of United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967). In my view this case is distinguishable from Schwinn because there is less potential for restraint of intrabrand competition and more potential for stimulating interbrand competition. As to intrabrand competition, Sylvania, unlike Schwinn, did not restrict the customers to whom or the territories where its purchasers could sell. As to interbrand competition, Sylvania, unlike Schwinn, had an insignificant market share at the time it adopted its challenged distribution practice and enjoyed no consumer preference that would allow its retailers to charge a premium over other brands. In two short paragraphs, the majority disposes of the view, adopted after careful analysis by the Ninth Circuit en banc below, that these differences provide a "principled basis for distinguishing Schwinn," ante, at 46, despite holdings by three Courts of Appeals and the District Court on remand in Schwinn that the per se rule established in that case does not apply to location clauses such as Sylvania's. To reach out to overrule one of this Court's recent interpretations of the Sherman Act, after such a cursory examination of the necessity for doing so, is surely an affront to the principle that considerations of stare decisis are to be given particularly strong weight in the area of statutory construction. Illinois Brick Co. v. Illinois, 431 U.S. 720, 736-737, 97 S.Ct. 2061, 2070, 52 L.Ed.2d 707 (1977); Runyon v. McCrary, 427 U.S. 160, 175, 96 S.Ct. 2586, 2596, 49 L.Ed.2d 415 (1976); Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974).
37
One element of the system of interrelated vertical restraints invalidated in Schwinn was a retail-customer restriction prohibiting franchised retailers from selling Schwinn products to nonfranchised retailers. The Court rests its inability to distinguish Schwinn entirely on this retail-customer restriction, finding it "(i)n intent and competitive impact . . . indistinguishable from the location restriction in the present case," because "(i)n both cases the restrictions limited the freedom of the retailer to dispose of the purchased products as he desired." Ante, at 46. The customer restriction may well have, however, a very different "intent and competitive impact" than the location restriction: It prevents discount stores from getting the manufacturer's product and thus prevents intrabrand price competition. Suppose, for example, that interbrand competition is sufficiently weak that the franchised retailers are able to charge a price substantially above wholesale. Under a location restriction, these franchisers are free to sell to discount stores seeking to exploit the potential for sales at prices below the prevailing retail level. One of the franchised retailers may be tempted to lower its price and act in effect as a wholesaler for the discount house in order to share in the profits to be had from lowering prices and expanding volume.1
38
Under a retail-customer restriction, on the other hand, the franchised dealers cannot sell to discounters, who are cut off altogether from the manufacturer's product and the opportunity for intrabrand price competition. This was precisely the theory on which the Government successfully challenged Schwinn's customer restrictions in this Court. The District Court in that case found that "(e)ach one of (Schwinn's franchised retailers) knows also that he is not a wholesaler and that he cannot sell as a wholesaler or act as an agent for some other unfranchised dealer, such as a discount house retailer who has not been franchised as a dealer by Schwinn." 237 F.Supp. 323, 333 (ND Ill.1965). The Government argued on appeal, with extensive citations to the record, that the effect of this restriction was "to keep Schwinn products out of the hands of discount houses and other price cutters so as to discourage price competition in retailing . . .." Brief for United States, O.T. 1966, No. 25, p. 26. See id., at 29-37.2
39
It is true that, as the majority states, Sylvania's location restriction inhibited to some degree "the freedom of the retailer to dispose of the purchased products" by requiring the retailer to sell from one particular place of business. But the retailer is still free to sell to any type of customer including discounters and other unfranchised dealers from any area. I think this freedom implies a significant difference for the effect of a location clause on intrabrand competition. The District Court on remand in Schwinn evidently thought so as well, for after enjoining Schwinn's customer restrictions as directed by this Court it expressly sanctioned location clauses, permitting Schwinn to "designat(e) in its retailer franchise agreements the location of the place or places of business for which the franchise is issued." 291 F.Supp. 564, 565-566 (ND Ill.1968).
40
An additional basis for finding less restraint of intrabrand competition in this case, emphasized by the Ninth Circuit en banc, is that Schwinn involved restrictions on competition among distributors at the wholesale level. As Judge Ely wrote for the six-member majority below:
41
"(Schwinn) had created exclusive geographical sales territories for each of its 22 wholesaler bicycle distributors and had made each distributor the sole Schwinn outlet for the distributor's designated area. Each distributor was prohibited from selling to any retailers located outside its territory. . . .
42
". . . Schwinn's territorial restrictions requiring dealers to confine their sales to exclusive territories prescribed by Schwinn prevented a dealer from competing for customers outside his territory. . . . Schwinn's restrictions guaranteed each wholesale distributor that it would be absolutely isolated from all competition from other Schwinn wholesalers." 537 F.2d 980, 989-990 (1976).
43
Moreover, like its franchised retailers, Schwinn's distributors were absolutely barred from selling to nonfranchised retailers, further limiting the possibilities of intrabrand price competition.
44
The majority apparently gives no weight to the Court of Appeals' reliance on the difference between the competitive effects of Sylvania's location clause and Schwinn's interlocking "system of vertical restraints affecting both wholesale and retail distribution." Id., at 989. It also ignores post-Schwinn decisions of the Third and Tenth Circuits upholding the validity of location clauses similar to Sylvania's here. Salco Corp. v. General Motors Corp., 517 F.2d 567 (CA10 1975); Kaiser v. General Motors Corp., 530 F.2d 964 (CA3 1976), aff'g 396 F.Supp. 33 (ED Pa.1975). Finally, many of the scholarly authorities the majority cites in support of its overruling of Schwinn have not had to strain to distinguish location clauses from the restrictions invalidated there. E.g., Robinson, Recent Antitrust Developments: 1974, 75 Colum.L.Rev. 243, 278 (1975) (outcome in Sylvania not preordained by Schwinn because of marked differences in the vertical restraints in the two cases); McLaren, Territorial and Customer Restrictions, Consignments, Suggested Retail Prices and Refusals to Deal, 37 Antitrust L.J. 137, 144-145 (1968) (by implication Schwinn exempts location clauses from its per se rule); Pollock, Alternative Distribution Methods After Schwinn, 63 Nw.U.L.Rev. 595, 603 (1968) ("Nor does the Schwinn doctrine outlaw the use of a so-called 'location clause' . . .").
45
Just as there are significant differences between Schwinn and this case with respect to intrabrand competition, there are also significant differences with respect to interbrand competition. Unlike Schwinn, Sylvania clearly had no economic power in the generic product market. At the time they instituted their respective distribution policies, Schwinn was "the leading bicycle producer in the Nation," with a national market share of 22.5%, 388 U.S., at 368, 374, 87 S.Ct., at 1860, 1863, whereas Sylvania was a "faltering, if not failing" producer of television sets, with "a relatively insignificant 1% to 2%" share of the national market in which the dominant manufacturer had a 60% to 70% share. Ante, at 38, 58 n. 29. Moreover, the Schwinn brand name enjoyed superior consumer acceptance and commanded a premium price as, in the District Court's words, "the Cadillac of the bicycle industry." 237 F.Supp., at 335. This premium gave Schwinn dealers a margin of protection from interbrand competition and created the possibilities for price cutting by discounters that the Government argued were forestalled by Schwinn's customer restrictions.3 Thus, judged by the criteria economists use to measure market power product differentiation and market share4 Schwinn enjoyed a substantially stronger position in the bicycle market than did Sylvania in the television market. This Court relied on Schwinn's market position as one reason not to apply the rule of reason to the vertical restraints challenged there. "Schwinn was not a newcomer, seeking to break into or stay in the bicycle business. It was not a 'failing company.' On the contrary, at the initiation of these practices, it was the leading bicycle producer in the Nation." 388 U.S., at 374, 87 S.Ct., at 1863. And the Court of Appeals below found "another significant distinction between our case and Schwinn " in Sylvania's "precarious market share," which "was so small when it adopted its locations practice that it was threatened with expulsion from the television market." 537 F.2d, at 991.5
46
In my view there are at least two considerations, both relied upon by the majority to justify overruling Schwinn, that would provide a "principled basis" for instead refusing to extend Schwinn to a vertical restraint that is imposed by a "faltering" manufacturer with a "precarious" position in a generic product market dominated by another firm. The first is that, as the majority puts it, "when interbrand competition exists, as it does among television manufacturers, it provides a significant check on the exploitation of intrabrand market power because of the ability of consumers to substitute a different brand of the same product." Ante, at 52 n. 19. See also ante, at 54.6 Second is the view, argued forcefully in the economic literature cited by the majority, that the potential benefits of vertical restraints in promoting interbrand competition are particularly strong where the manufacturer imposing the restraints is seeking to enter a new market or to expand a small market share. Ibid.7 The majority even recognizes that Schwinn "hinted" at an exception for new entrants and failing firms from its per se rule. Ante, at 53-54, n. 22.
47
In other areas of antitrust law, this Court has not hesitated to base its rules of per se illegality in part on the defendant's market power. Indeed, in the very case from which the majority draws its standard for per se rules, Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), the Court stated the reach of the per se rule against tie-ins under § 1 of the Sherman Act as extending to all defendants with "sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product. . . ." 356 U.S., at 6, 78 S.Ct., at 518. And the Court subsequently approved an exception to this per se rule for "infant industries" marketing a new product. United States v. Jerrold Electronics Corp., 187 F.Supp. 545 (ED Pa.1960), aff'd per curiam, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806 (1961). See also United States v. Philadelphia National Bank, 374 U.S. 321, 363, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915 (1963), where the Court held presumptively illegal a merger "which produces a firm controlling an undue percentage share of the relevant market . . . ." I see no doctrinal obstacle to excluding firms with such minimal market power as Sylvania's from the reach of the Schwinn rule.8
48
I have, moreover, substantial misgivings about the approach the majority takes to overruling Schwinn. The reason for the distinction in Schwinn between sale and nonsale transactions was not, as the majority would have it, "the Court's effort to accommodate the perceived intrabrand harm and interbrand benefit of vertical restrictions," ante, at 52; the reason was rather, as Judge Browning argued in dissent below, the notion in many of our cases involving vertical restraints that independent businessmen should have the freedom to dispose of the goods they own as they see fit. Thus the first case cited by the Court in Schwinn for the proposition that "restraints upon alienation . . . are beyond the power of the manufacturer to impose upon its vendees and . . . are violations of § 1 of the Sherman Act," 388 U.S., at 377, 87 S.Ct., at 1865, was this Court's seminal decision holding, a series of resale-price-maintenance agreements per se illegal Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). In Dr. Miles the Court stated that "a general restraint upon alienation is ordinarily invalid," citing Coke on Littleton, and emphasized that the case involved "agreements restricting the freedom of trade on the part of dealers who own what they sell." Id., at 404, 407-408, 31 S.Ct., at 383, 384. Mr. Justice Holmes stated in dissent: "If (the manufacturer) should make the retail dealers also agents in law as well as in name and retain the title until the goods left their hands I cannot conceive that even the present enthusiasm for regulating the prices to be charged by other people would deny that the owner was acting within his rights." Id., at 411, 31 S.Ct., at 386.
49
This concern for the freedom of the businessman to dispose of his own goods as he sees fit is most probably the explanation for two subsequent cases in which the Court allowed manufacturers to achieve economic results similar to that in Dr. Miles where they did not impose restrictions on dealers who had purchased their products. In United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), the Court found no antitrust violation in a manufacturer's policy of refusing to sell to dealers who failed to charge the manufacturer's suggested retail price and of terminating dealers who did not adhere to that price. It stated that the Sherman Act did not "restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal." Id., at 307, 39 S.Ct., at 468. In United States v. General Electric Co., 272 U.S. 476, 47 S.Ct. 192, 71 L.Ed. 362 (1926), the Court upheld resale-price-maintenance agreements made by a patentee with its dealers who obtained its goods on a consignment basis. The Court distinguished Dr. Miles on the ground that the agreements there were "contracts of sale rather than of agency" and involved "an attempt by the Miles Medical Company . . . to hold its purchasers, after the purchase at full price, to an obligation to maintain prices on a resale by them." 272 U.S., at 487, 47 S.Ct., at 196. By contrast, a manufacturer was free to contract with his agents to "(fix) the price by which his agents transfer the title from him directly to (the) consumer . . . however comprehensive as a mass or whole in (the) effect (of these contracts)." Id., at 488, 47 S.Ct., at 196. Although these two cases have been called into question by subsequent decisions, see United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), and Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964), their rationale runs through our case law in the area of distributional restraints. In Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 213, 71 S.Ct. 259, 260, 95 L.Ed. 219 (1951), the Court held that an agreement to fix resale price was per se illegal under § 1 because "such agreements, no less than those to fix minimum prices, cripple the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment." Accord, Albrecht v. Herald Co., 390 U.S. 145, 152, 88 S.Ct. 869, 872, 19 L.Ed.2d 998 (1968). See generally Judge Browning's dissent below, 537 F.2d, at 1018-1022; ABA Antitrust Section, Monograph No. 2, Vertical Restrictions Limiting Intrabrand Competition 29-31, 82-83, 87-91, 96-97 (1977); Blake & Jones, Toward a Three-Dimensional Antitrust Policy, 65 Colum.L.Rev. 422, 427-436 (1965).
50
After summarily rejecting this concern, reflected in our interpretations of the Sherman Act, for "the autonomy of independent businessmen," ante, at 53 n. 21, the majority not surprisingly finds "no justification" for Schwinn's distinction between sale and nonsale transactions because the distinction is "essentially unrelated to any relevant economic impact." Ante, at 56. But while according some weight to the businessman' s interest in controlling the terms on which he trades in his own goods may be anathema to those who view the Sherman Act as directed solely to economic efficiency,9 this principle is without question more deeply embedded in our cases than the notions of "free rider" effects and distributional efficiencies borrowed by the majority from the "new economics of vertical relationships." Ante, at 54-57. Perhaps the Court is right in partially abandoning this principle and in judging the instant nonprice vertical restraints solely by their "relevant economic impact"; but the precedents which reflect this principle should not be so lightly rejected by the Court. The rationale of Schwinn is no doubt difficult to discern from the opinion, and it may be wrong; it is not, however, the aberration the majority makes it out to be here.
51
I have a further reservation about the majority's reliance on "relevant economic impact" as the test for retaining per se rules regarding vertical restraints. It is common ground among the leading advocates of a purely economic approach to the question of distribution restraints that the economic arguments in favor of allowing vertical nonprice restraints generally apply to vertical price restraints as well.10 Although the majority asserts that "the per se illegality of price restrictions . . . involves significantly different questions of analysis and policy," ante, at 51 n. 18, I suspect this purported distinction may be as difficult to justify as that of Schwinn under the terms of the majority's analysis. Thus Professor Posner, in an article cited five times by the majority, concludes: "I believe that the law should treat price and nonprice restrictions the same and that it should make no distinction between the imposition of restrictions in a sale contract and their imposition in an agency contract." Posner, supra, n. 7, at 298. Indeed, the Court has already recognized that resale price maintenance may increase output by inducing "demand-creating activity" by dealers (such as additional retail outlets, advertising and promotion, and product servicing) that outweighs the additional sales that would result from lower prices brought about by dealer price competition. Albrecht v. Herald Co., supra, 390 U.S., at 151 n. 7, 88 S.Ct., at 872 n. 7. These same output-enhancing possibilities of nonprice vertical restraints are relied upon by the majority as evidence of their social utility and economic soundness, ante, at 55, and as a justification for judging them under the rule of reason. The effect, if not the intention, of the Court's opinion is necessarily to call into question the firmly established per se rule against price restraints.
52
Although the case law in the area of distributional restraints has perhaps been less than satisfactory, the Court would do well to proceed more deliberately in attempting to improve it. In view of the ample reasons for distinguishing Schwinn from this case and in the absence of contrary congressional action, I would adhere to the principle that
53
"each case arising under the Sherman Act must be determined upon the particular facts disclosed by the record, and . . . the opinions in those cases must be read in the light of their facts and of a clear recognition of the essential differences in the facts of those cases, and in the facts of any new case to which the rule of earlier decisions is to be applied." Maple Flooring Manufacturers Association v. United States, 268 U.S. 563, 579, 45 S.Ct. 578, 583, 69 L.Ed. 1093 (1925).
54
In order to decide this case, the Court need only hold that a location clause imposed by a manufacturer with negligible economic power in the product market has a competitive impact sufficiently less restrictive than the Schwinn restraints to justify a rule-of-reason standard, even if the same weight is given here as in Schwinn to dealer autonomy. I therefore concur in the judgment.
55
Mr. Justice BRENNAN with whom Mr. Justice MARSHALL joins, dissenting.
56
I would not overrule the per se rule stated in United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), and would therefore reverse the decision of the Court of Appeals for the Ninth Circuit.
1
RCA at that time was the dominant firm with as much as 60% to 70% of national television sales in an industry with more than 100 manufacturers.
2
The number of retailers selling Sylvania products declined significantly as a result of the change, but in 1965 there were at least two franchised Sylvania retailers in each metropolitan center of more than 100,000 population.
3
Sylvania imposed no restrictions on the right of the franchisee to sell the products of competing manufacturers.
4
Sylvania's market share in San Francisco was approximately 2.5% half its national and northern California average.
5
There are in fact four corporate petitioners: Continental T. V., Inc., A & G Sales, Sylpac, Inc., and S. A. M. Industries, Inc. All are owned in large part by the same individual, and all conducted business under the trade style of "Continental T. V." We adopt the convention used by the court below of referring to petitioners collectively as "Continental."
6
Sylvania had achieved exceptional results in Sacramento, where its market share exceeded 15% in 1965.
7
In its findings of fact made in conjunction with Continental's plea for injunctive relief, the District Court rejected Sylvania's claim that its actions were prompted by independent concerns over Continental's credit. The jury's verdict is ambiguous on this point. In any event, we do not consider it relevant to the issue before us.
8
Although Sylvania contended in the District Court that its policy was unilaterally enforced, it now concedes that its location restriction involved understandings or agreements with the retailers.
9
The jury also found that Maguire had not conspired with Sylvania with respect to this violation. Other claims made by Continental were either rejected by the jury or withdrawn by Continental. Most important was the jury's rejection of the allegation that the location restriction was part of a larger scheme to fix prices. A pendent claim that Sylvania and Maguire had willfully and maliciously caused injury to Continental's business in violation of California law also was rejected by the jury, and a pendent breach-of-contract claim was withdrawn by Continental during the course of the proceedings. The parties eventually stipulated to a judgment for Maguire on its claim against Continental.
10
There were two major dissenting opinions. Judge Kilkenny argued that the present case is indistinguishable from Schwinn and that the jury had been correctly instructed. Agreeing with Judge Kilkenny's interpretation of Schwinn, Judge Browning stated that he found the interpretation responsive to and justified by the need to protect " 'individual traders from unnecessary restrictions upon their freedom of action.' " 537 F.2d, at 1021. See n. 21, infra.
11
This Court has never given plenary consideration to the question of the proper antitrust analysis of location restrictions. Before Schwinn such restrictions had been sustained in Boro Hall Corp. v. General Motors Corp., 124 F.2d 822 (CA2 1942). Since the decision in Schwinn, location restrictions have been sustained by three Courts of Appeals, including the decision below. Salco Corp. v. General Motors Corp., 517 F.2d 567 (CA10 1975); Kaiser v. General Motors Corp., 396 F.Supp. 33 (ED Pa.1975), affirmance order, 530 F.2d 964 (CA3 1976).
12
The distinctions drawn by the Court of Appeals and endorsed in Mr. Justice White's separate opinion have no basis in Schwinn. The intrabrand competitive impact of the restrictions at issue in Schwinn ranged from complete elimination to mere reduction; yet, the Court did not even hint at any distinction on this ground. Similarly, there is no suggestion that the per se rule was applied because of Schwinn's prominent position in its industry. That position was the same whether the bicycles were sold or consigned, but the Court's analysis was quite different. In light of Mr. Justice White's emphasis on the "superior consumer acceptance" enjoyed by the Schwinn brand name, post, at 63, we note that the Court rejected precisely that premise in Schwinn. Applying the rule of reason to the restrictions imposed in nonsale transactions, the Court stressed that there was "no showing that (competitive bicycles were) not in all respects reasonably interchangeable as articles of competitive commerce with the Schwinn product" and that it did "not regard Schwinn's claim of product excellence as establishing the contrary." 388 U.S., at 381, and n. 7, 87 S.Ct., at 1867. Although Schwinn did hint at preferential treatment for new entrants and failing firms, the District Court below did not even submit Sylvania's claim that it was failing to the jury. Accordingly, Mr. Justice White's position appears to reflect an extension of Schwinn in this regard. Having crossed the "failing firm" line, Mr. Justice White attempts neither to draw a new one nor to explain why one should be drawn at all.
13
A former Assistant Attorney General in charge of the Antitrust Division has described Schwinn as "an exercise in barren formalism" that is "artificial and unresponsive to the competitive needs of the real world." Baker, Vertical Restraints in Times of Change: From White to Schwinn to Where?, 44 Antitrust L.J. 537 (1975). See, e. g., Handler, The Twentieth Annual Antitrust Review 1967, 53 Va.L.Rev. 1667 (1967); McLaren, Territorial and Customer Restrictions, Consignments, Suggested Retail Prices and Refusals to Deal, 37 Antitrust L.J. 137 (1968); Pollock, Alternative Distribution Methods After Schwinn, 63 Nw.U.L.Rev. 595 (1968); Posner, Antitrust Policy and the Supreme Court: An Analysis of the Restricted Distribution, Horizontal Merger and Potential Competition Decisions, 75 Colum.L.Rev. 282 (1975); Robinson, Recent Antitrust Developments: 1974, 75 Colum.L.Rev. 243 (1975); Note, Vertical Territorial and Customer Restrictions in the Franchising Industry, 10 Colum.J.L. & Soc.Prob. 497 (1974); Note, Territorial and Customer Restrictions: A Trend Toward a Broader Rule of Reason?, 40 Geo.Wash.L.Rev. 123 (1971); Note, Territorial Restrictions and Per Se Rules A Re-evaluation of the Schwinn and Sealy Doctrines, 70 Mich.L.Rev. 616 (1972). But see Louis, Vertical Distributional Restraints Under Schwinn and Sylvania : An Argument for the Continuing Use of a Partial Per Se Approach, 75 Mich.L.Rev. 275 (1976); Zimmerman, Distribution Restrictions After Sealy and Schwinn, 12 Antitrust Bull. 1181 (1967). For a more inclusive list of articles and comments, see 537 F.2d, at 988 n. 13.
14
Indeed, as one commentator has observed, many courts "have struggled to distinguish or limit Schwinn in ways that are a tribute to judicial ingenuity." Robinson, supra, n. 13, at 272. Thus, the statement in Schwinn at post-sale vertical restrictions as to customers or territories are "unreasonable without more," 388 U.S., at 379, 87 S.Ct., at 1865, has been interpreted to allow an exception to the per se rule where the manufacturer proves "more" by showing that the restraints will protect consumers against injury and the manufacturer against product liability claims. See, e. g., Tripoli Co. v. Wella Corp., 425 F.2d 932, 936-938 (CA3 1970) (en banc). Similarly, the statement that Schwinn's enforcement of its restrictions had been " 'firm and resolute,' " 388 U.S., at 372, 87 S.Ct., at 1862, has been relied upon to distinguish cases lacking that element. See, e. g., Janel Sales Corp. v. Lanvin Parfums, Inc., 396 F.2d 398, 406 (CA2 1968). Other factual distinctions have been drawn to justify upholding territorial restrictions that would seem to fall within the scope of the Schwinn per se rule. See, e. g., Carter-Wallace, Inc. v. United States, 449 F.2d 1374, 1379-1380, 196 Ct.Cl. 35, 44-46 (1971) (per se rule inapplicable when purchaser can avoid restraints by electing to buy product at higher price); Colorado Pump & Supply Co. v. Febco, Inc., 472 F.2d 637 (CA10 1973) (apparent territorial restriction characterized as primary responsibility clause). One Court of Appeals has expressly urged us to consider the need in this area for greater flexibility. Adolph Coors Co. v. FTC, 497 F.2d 1178, 1187 (CA10 1974). The decision in Schwinn and the developments in the lower courts have been exhaustively surveyed in ABA Antitrust Section, Monograph No. 2, Vertical Restrictions Limiting Intrabrand Competition (1977) (ABA Monograph No. 2).
15
One of the most frequently cited statements of the rule of reason is that of Mr. Justice Brandeis in Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918):
"The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences."
16
Per se rules thus require the Court to make broad generalizations about the social utility of particular commercial practices. The probability that anticompetitive consequences will result from a practice and the severity of those consequences must be balanced against its pro-competitive consequences. Cases that do not fit the generalization may arise, but a per se rule reflects the judgment that such cases are not sufficiently common or important to justify the time and expense necessary to identify them. Once established, per se rules tend to provide guidance to the business community and to minimize the burdens on litigants and the judicial system of the more complex rule-of-reason trials, see Northern Pac. R. Co. v. United States, 356 U.S., at 5, 78 S.Ct., at 518; United States v. Topco Associates, Inc., 405 U.S. 596, 609-610, 92 S.Ct. 1126, 1134, 31 L.Ed.2d 515 (1972), but those advantages are not sufficient in themselves to justify the creation of per se rules. If it were otherwise, all of antitrust law would be reduced to per se rules, thus introducing an unintended and undesirable rigidity in the law.
17
After White Motor Co., the Courts of Appeals continued to evaluate territorial restrictions according to the rule of reason. Sandura Co. v. FTC, 339 F.2d 847 (CA6 1964); Snap-On Tools Corp. v. FTC, 321 F.2d 825 (CA7 1963). For an exposition of the history of the antitrust analysis of vertical restrictions before Schwinn, see ABA Monograph No. 2, pp. 6-8.
18
As in Schwinn, we are concerned here only with nonprice vertical restrictions. The per se illegality of price restrictions has been established firmly for many years and involves significantly different questions of analysis and policy. As Mr. Justice White notes, post, at 69-70, some commentators have argued that the manufacturer's motivation for imposing vertical price restrictions may be the same as for nonprice restrictions. There are, however, significant differences that could easily justify different treatment. In his concurring opinion in White Motor Co. v. United States, Mr. Justice Brennan noted that, unlike nonprice restrictions, "(r)esale price maintenance is not only designed to, but almost invariably does in fact, reduce price competition not only among sellers of the affected product, but quite as much between that product and competing brands." 372 U.S., at 268, 83 S.Ct., at 704. Professor Posner also recognized that "industry-wide resale price maintenance might facilitate cartelizing." Posner, supra, n. 13, at 294 (footnote omitted); see R. Posner, Antitrust: Cases, Economic Notes and Other Materials 134 (1974); E. Gellhorn, Antitrust Law and Economics 252 (1976); Note, 10 Colum.J.L. & Soc.Prob., supra, n. 13, at 498 n. 12. Furthermore, Congress recently has expressed its approval of a per se analysis of vertical price restrictions by repealing those provisions of the Miller-Tydings and McGuire Acts allowing fair trade pricing at the option of the individual States. Consumer Goods Pricing Act of 1975, 89 Stat. 801, amending 15 U.S.C. §§ 1, 45(a). No similar expression of congressional intent exists for nonprice restrictions.
19
Interbrand competition is the competition among the manufacturers of the same generic product television sets in this case and is the primary concern of antitrust law. The extreme example of a deficiency of interbrand competition is monopoly, where there is only one manufacturer. In contrast, intrabrand competition is the competition between the distributors wholesale or retail of the product of a particular manufacturer.
The degree of intrabrand competition is wholly independent of the level of interbrand competition confronting the manufacturer. Thus, there may be fierce intrabrand competition among the distributors of a product produced by a monopolist and no intrabrand competition among the distributors of a product produced by a firm in a highly competitive industry. But when interbrand competition exists, as it does among television manufacturers, it provides a significant check on the exploitation of intrabrand market power because of the ability of consumers to substitute a different brand of the same product.
20
The Court did not specifically refer to intrabrand competition, but this meaning is clear from the context.
21
The Court also stated that to impose vertical restrictions in sale transactions would "violate the ancient rule against restraints on alienation." 388 U.S., at 380, 87 S.Ct., at 1866. The isolated reference has provoked sharp criticism from virtually all of the commentators on the decision, most of whom have regarded the Court's apparent reliance on the "ancient rule" as both a misreading of legal history and a perversion of antitrust analysis. See, e. g., Handler, supra, n. 13, at 1684-1686; Posner, supra, n. 13, at 295-296; Robinson, supra, n. 13, at 270-271; but see Louis, supra, n. 13 at 276 n. 6. We quite agree with Mr. Justice Stewart's dissenting comment in Schwinn that "the state of the common law 400 or even 100 years ago is irrelevant to the issue before us: the effect of the antitrust laws upon vertical distributional restraints in the American economy today." 388 U.S., at 392, 87 S.Ct., at 1872.
We are similarly unable to accept Judge Browning's interpretation of Schwinn. In this dissent below he argued that the decision reflects the view that the Sherman Act was intended to prohibit restrictions on the autonomy of independent businessmen even though they have no impact on "price, quality, and quantity of goods and services," 537 F.2d, at 1019. This view is certainly not explicit in Schwinn, which purports to be based on an examination of the "impact (of the restrictions) upon the marketplace." 388 U.S., at 374, 87 S.Ct., at 1863. Competitive economies have social and political as well as economic advantages, see e. g., Northern Pac. R. Co. v. United States, 356 U.S., at 4, 78 S.Ct., at 517, but an antitrust policy divorced from market considerations would lack any objective benchmarks. As Mr. Justice Brandeis reminded us: "Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence." Chicago Board of Trade v. United States, 246 U.S., at 238, 38 S.Ct., at 244. Although Mr. Justice White's opinion endorses Judge Browning's interpretation, post, at 66-68, it purports to distinguish Schwinn on grounds inconsistent with that interpretation, post, at 71.
22
In that regard, the Court specifically stated that a more complete prohibition "might severely hamper smaller enterprises resorting to reasonable methods of meeting the competition of giants and of merchandising through independent dealers." 388 U.S., at 380, 87 S.Ct., at 1866. The Court also broadly hinted that it would recognize additional exceptions to the per se rule for new entrants in an industry and for failing firms, both of which were mentioned in White Motor as candidates for such exceptions. 388 U.S., at 374, 87 S.Ct., at 1863. The Court might have limited the exceptions to the per se rule to these situations, which present the strongest arguments for the sacrifice of intrabrand competition for interbrand competition. Significantly, it chose instead to create the more extensive exception for nonsale transactions which is available to all businesses, regardless of their size, financial health, or market share. This broader exception demonstrates even more clearly the Court's awareness of the "redeeming virtues" of vertical restrictions.
23
Marketing efficiency is not the only legitimate reason for a manufacturer's desire to exert control over the manner in which his products are sold and serviced. As a result of statutory and common-law developments, society increasingly demands that manufacturers assume direct responsibility for the safety and quality of their products. For example, at the federal level, apart from more specialized requirements, manufacturers of consumer products have safety responsibilities under the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq. (1970 ed., Supp. V), and obligations for warranties under the Consumer Product Warranties Act, 15 U.S.C. § 2301 et seq. (1970 ed., Supp. V). Similar obligations are imposed by state law. See, e. g., Cal.Civ.Code Ann. § 1790 et seq. (West 1973). The legitimacy of these concerns has been recognized in cases involving vertical restrictions. See, e. g., Tripoli Co. v. Wella Corp., 425 F.2d 932 (CA3 1970).
24
"Generally a manufacturer would prefer the lowest retail price possible, once its price to dealers has been set, because a lower retail price means increased sales and higher manufacturer revenues." Note, 88 Harv.L.Rev. 636, 641 (1975). In this context, a manufacturer is likely to view the difference between the price at which it sells to its retailers and their price to the consumer as his "cost of distribution," which it would prefer to minimize. Posner, supra, n. 13, at 283.
25
Professor Comanor argues that the promotional activities encouraged by vertical restrictions result in product differentiation and, therefore, a decrease in interbrand competition. This argument is flawed by its necessary assumption that a large part of the promotional efforts resulting from vertical restrictions will not convey socially desirable information about product availability, price, quality, and services. Nor is it clear that a per se rule would result in anything more than a shift to less efficient methods of obtaining the same promotional effects.
26
We also note that per se rules in this area may work to the ultimate detriment of the small businessmen who operate as franchisees. To the extent that a per se rule prevents a firm from using the franchise system to achieve efficiencies that it perceives as important to its successful operation, the rule creates an incentive for vertical integration into the distribution system, thereby eliminating to that extent the role of independent businessmen. See, e. g., Keck, The Schwinn Case, 23 Bus.Law. 669 (1968); Pollock, supra, n. 13, at 608-610.
27
Continental's contention that balancing intrabrand and interbrand competitive effects of vertical restrictions is not a "proper part of the judicial function," Brief for Petitioners 52, is refuted by Schwinn itself. United States v. Topco Associates, Inc., 405 U.S., at 608, 92 S.Ct., at 1134, is not to the contrary, for it involved a horizontal restriction among ostensible competitors.
28
There may be occasional problems in differentiating vertical restrictions from horizontal restrictions originating in agreements among the retailers. There is no doubt that restrictions in the latter category would be illegal per se, see, e. g., United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); United States v. Topco Associates, Inc., supra, but we do not regard the problems of proof as sufficiently great to justify a per se rule.
29
The location restriction used by Sylvania was neither the least nor the most restrictive provision that it could have used. See ABA Monograph No. 2, pp. 20-25. But we agree with the implicit judgment in Schwinn that a per se rule based on the nature of the restriction is, in general, undesirable. Although distinctions can be drawn among the frequently used restrictions, we are inclined to view them as differences of degree and form. See Robinson, supra, n. 13, at 279-280; Averill, Sealy, Schwinn and Sherman One: An Analysis and Prognosis, 15 N.Y.L.F. 39, 65 (1969). We are unable to perceive significant social gain from channeling transactions into one form or another. Finally, we agree with the Court in Schwinn that the advantages of vertical restrictions should not be limited to the categories of new entrants and failing firms. Sylvania was faltering, if not failing, and we think it would be unduly artificial to deny it the use of valuable competitive tools.
30
The importance of stare decisis is, of course, unquestioned, but as Mr. Justice Frankfurter stated in Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604 (1940), "stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience."
1
The franchised retailers would be prevented from engaging in discounting themselves if, under the Colgate doctrine, see infra, at 67, the manufacturer could lawfully terminate dealers who did not adhere to his suggested retail price.
2
Given the Government's emphasis on the inhibiting effect of the Schwinn restrictions on discounting activities, the Court may well have been referring to this effect when it condemned the restrictions as "obviously destructive of competition." 388 U.S., at 379, 87 S.Ct., at 1865. But the Court was also heavily influenced by its concern for the freedom of dealers to control the disposition of products they purchased from Schwinn. See infra, at 66-69. In any event, the record in Schwinn illustrates the potentially greater threat to intrabrand competition posed by customer as opposed to location restrictions.
3
Relying on the finding of the District Court, the Government argued:
"(T)he declared purpose of the Schwinn franchising system (was) to establish and exploit a distinctive identity and superior consumer acceptance for the Schwinn brand name as the Cadillac of bicycles, thereby enabling the charging of a premium price . . .. This scheme could not possibly succeed, and doubtless would long ago have been abandoned, if in the consumer's mind other bicycles were just as good as Schwinn's." Brief for United States, O.T. 1966, No. 25, p. 36.
4
See, e.g., F. Scherer, Industrial Market Structure and Economic Performance 10-11 (1970); P. Samuelson, Economics 485-491 (10th ed. 1976).
5
Schwinn's national market share declined to 12.8% in the 10 years following the institution of its distribution program, at which time it ranked second behind a firm with a 22.8% share. 388 U.S., at 368-369, 87 S.Ct., at 1859-60. In the three years following the adoption of its locations practice, Sylvania's national market share increased to 5%, placing it eighth among manufacturers of color television sets. Ante, at 38-39. At this time Sylvania's shares of the San Francisco, Sacramento, and northern California markets were respectively 2.5%, 15%, and 5%. Ante, at 39 nn. 4, 6. The District Court made no findings as to Schwinn's share of local bicycle markets.
6
For an extensive discussion of this effect of interbrand competition, see ABA Antitrust Section, Monograph No. 2, Vertical Restrictions Limiting Intrabrand Competition 60-67 (1977).
7
Preston, Restrictive Distribution Arrangements: Economic Analysis and Public Policy Standards, 30 Law & Contemp.Prob. 506, 511 (1965); Posner, Antitrust Policy and the Supreme Court: An Analysis of the Restricted Distribution, Horizontal Merger and Potential Competition Decisions, 75 Colum.L.Rev. 282, 293 (1975); Scherer, supra, n. 4, at 510.
8
Cf. Sandura Co. v. FTC, 339 F.2d 847, 850 (CA6 1964) (territorial restrictions on distributors imposed by small manufacturer "competing with and losing ground to the 'giants' of the floor-covering industry" is not per se illegal); Baker, Vertical Restraints in Times of Change: From White to Schwinn to Where?, 44 Antitrust L.J. 537, 545-547 (1975) (presumptive illegality of territorial restrictions imposed by manufacturer with "any degree of market power"). The majority's failure to use the market share of Schwinn and Sylvania as a basis for distinguishing these cases is the more anomalous for its reliance, see infra, at 68-70, on the economic analysis of those who distinguish the anticompetitive effects of distribution restraints on the basis of the market shares of the distributors. See Posner, supra, at 299; Bork, The Rule of Reason and the Per Se Concept: Price Fixing and Market Division (II), 75 Yale L.J. 373, 391-429 (1966).
9
E.g., Bork, Legislative Intent and the Policy of the Sherman Act, 9 J.Law & Econ. 7 (1966); Bork, The Rule of Reason and the Per Se Concept: Price Fixing and Market Division (I), 74 Yale L.J. 775 (1965).
10
Professor Posner writes, for example:
"There is no basis for choosing between (price fixing and market division) on social grounds. If resale price maintenance is like dealer price fixing, and therefore bad, a manufacturer's assignment of exclusive territories is like market division, and therefore bad too . . ..
"(If helping new entrants break into a market) is a good justification for exclusive territories, it is an equally good justification for resale price maintenance, which as we have seen is simply another method of dealing with the free-rider problem. . . .
In fact, any argument that can also be made on behalf of exclusive territories can also be made on behalf of resale price maintenance." Posner, supra, n. 7, at 292-293. (Footnote omitted.)
See Bork, supra, n. 8, at 391-464.
| 78
|
53 L.Ed.2d 653
97 S.Ct. 2523
433 U.S. 148
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.STANDARD LIFE & ACCIDENT INSURANCE COMPANY.
No. 75-1771.
Argued May 30, 1977.
Decided June 23, 1977.
Syllabus
The "net valuation" portion of unpaid life insurance premiums (the portion state law requires a life insurance company to add to its reserves), but not the "loading" portion (the portion to be used to pay salesmen's commissions, other expenses such as state taxes and overhead, and profits), held required to be included in a life insurance company's assets and gross premium income, as well as in its reserves, for purposes of computing its federal income tax liability, notwithstanding such computation necessitates making a fictional assumption that the "net valuation" portion has been paid but that the "loading" portion has not. This treatment of unpaid premiums is in accordance with § 818(a) of the Internal Revenue Code of 1954 (as added by the Life Insurance Company Income Tax Act of 1959), which requires computations of a life insurance company's income taxes to be made "in a manner consistent with the manner required for purposes of the annual statement approved by the National Association of Insurance Commissioners," unless the NAIC procedures are inconsistent with accrual accounting rules, and to the extent that the Treasury Regulations require different treatment of unpaid premiums they are inconsistent with § 818(a) and therefore invalid. Pp. 152-163.
525 F.2d 786, reversed and remanded.
Stuart A. Smith, Washington, D. C., for petitioner.
Vester T. Hughes, Jr., Dallas, Tex., for respondent.
Matthew J. Zinn, Washington, D. C., for American Council of Life Insurance, as amicus curiae, by special leave of Court.
Mr. Justice STEVENS delivered the opinion of the Court.
1
In this case, for the second time this Term, we are required to construe the complex portion of the Internal Revenue Code concerning life insurance companies.1 The issue in this case is the extent to which deferred and uncollected life insurance premiums are includable in "reserves," "assets," and "gross premium income," as those concepts are used in the Life Insurance Company Income Tax Act of 1959.2
2
* Premiums on respondent's policies are often payable in installments. If an installment is not paid when due, the policy will lapse, generally after a grace period. However, there is no legally enforceable duty to pay the premiums. An installment falling due between the end of the tax year and the policy's anniversary date is called a "deferred premium." In 1961, the most recent year in issue, respondent had $1,572,763 of deferred premiums. Pet. for Cert. 4a. An installment which is overdue at the end of the tax year is called an "uncollected premium" if the policy has not yet lapsed. In 1961, respondent had $231,969 of uncollected premiums. Ibid. For convenience, we shall refer to both deferred and uncollected premiums simply as "unpaid premiums." The amount charged a policyholder the "gross premium" includes two components. Under state law, the company must add part of the premium to its reserves to ensure that it will have sufficient funds to pay death benefits. This amount, the "net valuation premium," is determined under mortality and interest assumptions. The rest of the gross premium is called "loading," and covers profits and expenses such as salesmen's commissions, state taxes and overhead.
3
Under normal accounting rules, unpaid premiums would simply be ignored. They would not be properly accruable since the company has no legal right to collect them. Nevertheless, for the past century, insurance companies have added an amount equal to the net valuation portion of unpaid premiums to their reserves with an offsetting addition to assets. State law uniformly requires this treatment of unpaid premiums, as does the accounting form issued by the National Association of Insurance Commissioners (NAIC). This national organization of state regulatory officials, which acts on behalf of the various state insurance departments, performs audits on insurance companies like respondent which do business in many States. The NAIC accounting form, known in the industry as the "Annual Statement," is used by respondent for its financial reporting. In effect, in calculating its reserves, the company must treat these premiums to some extent as if they had been paid.
4
This case involves the tax treatment of respondent's unpaid premiums for the years 1958, 1959, and 1961. In its returns for each of those years, it included the net unpaid premiums in reserves, just as it did in its annual NAIC statement. In 1959 and 1961, it also followed the NAIC statement by including the net premiums in assets and premium income. In 1958, however, it excluded the entire unpaid premium from assets. The Commissioner assessed a deficiency because respondent did not, in any of these years, include the entire unpaid premium loading as well as net premium in calculating assets and income. In his view, if reserves are calculated on the fictional assumption that these premiums have been paid, the same assumption should apply to the calculation of assets and gross premium income. The Tax Court upheld the deficiency; but the Court of Appeals reversed.3 It held that respondent's reserve calculation was correct because it was required by state law. The court further held that in accord with normal accounting practices, the premiums could not be considered as either assets or income before they were actually collected.
5
The Courts of Appeals have taken varying approaches to this problem. The position taken by the Tenth Circuit in this case conflicts with decisions of four other Circuits.4 For this reason, and because the question is important to the revenue,5 we granted certiorari. 429 U.S. 814, 97 S.Ct. 54, 50 L.Ed.2d 74.
6
Although the problem is a perplexing one, as indicated by the diversity of opinion among the Circuits, we find guidance in 26 U.S.C. § 818(a), which governs the method of accounting by life insurance companies. In our view, § 818(a) requires deference in this case to the established accounting procedures of the NAIC. In accordance with the NAIC procedures, we therefore hold that the net valuation portion of unpaid premiums, but not the loading, must be included in assets and gross premium income, as well as in reserves.
7
Resolution of the problem before us requires some understanding of how reserves, assets, and premium income enter into the calculation of a life insurance company's taxable income. We therefore begin with a summary of past legislation and of the method by which the tax is now calculated. We then turn to a discussion of § 818(a) and its application to this case.
II
8
Throughout the history of the federal income tax, Congress has taken the view that life insurance companies should not be taxed on the amounts collected for the purpose of paying death benefits. This basic theme has been implemented in different ways.
A.
9
From 1913 to 1920, life insurance companies, like other companies, were taxed on their entire income, but were allowed a deduction for "the net addition . . . required by law to be made within the year to reserve funds . . . ."6 In that period the Government first challenged, but then accepted, the industry practice of deducting additions to reserves based on unpaid premiums without taking those premiums into income.7
10
Beginning with the Revenue Act of 1921, Congress taxed only the investment income of life insurance companies; premium income was not included in their gross income.8 The companies were allowed to deduct a fixed percentage of their total reserves from their total investment income.9 The computation of this deduction was based on the company's entire policy reserves, including the portion attributed to unpaid premiums. This use of this portion of the reserves apparently was not questioned during that period. There was no occasion to consider whether unpaid premiums should be treated as "income" since all premium income was exempt from tax in this period.
11
The 1959 statute applies to all tax years after 1957. It preserves the basic concept of taxing only that portion of the life insurance company's income which is not required to meet policyholder obligations. It makes two important changes, however, in the method of computing that amount. First, whereas the preceding statutes assumed an industrywide rate of return for the purpose of calculating the reserve deduction, the 1959 Act requires a calculation based on each company's own earnings record. Second, in addition to imposing a tax on investment income, the new Act also taxes a portion of the company's premium income. Although the computations are more complex, the basic approach of the 1959 Act is therefore somewhat comparable to the pre-1921 "total income" concept.
B
12
In order to understand the implications of the Commissioner's argument that unpaid premiums should be consistently treated in calculating "assets" and "gross premium income," as well as "reserves," it is necessary to explain how these concepts are employed in the present statute.10
13
The 1959 Act adds §§ 801 through 820 to the Internal Revenue Code of 1954 (26 U.S.C.). Section 802(b) defines three components of "life insurance company taxable income," of which only the first two are relevant to this case.11 Generally, the taxable income is the sum of (1) the company's "taxable investment income" and (2) 50% of its other income (defined as the difference between its total "gain from operations" and its taxable investment income).12
14
A company's total investment income is regarded as including a share for the company, which is taxable, and a "policyholders' share," which is not.13 The policyholders' share is a percentage which is essentially determined by the ratio of the company's reserves to its assets.14 An increase in reserves will therefore reduce the company's taxable investment income, whereas an increase in its assets will increase its tax.
15
The company's "gain from operations" includes, in addition to its share of investment income,15 the "gross amount of premiums," § 809(c)(1). Obviously, if unpaid premiums are regarded as part of this gross amount, the company's gain from operations will be increased to that extent. Moreover, since a deduction is allowed for the net increase in reserves, § 809(d)(2), the contribution of unpaid premiums to the reserves diminishes the company's gain.
III
16
In a sense the case presents a question of timing. Respondent claims the right to treat unpaid premiums as creating reserves, and therefore a tax deduction, in one year, but wishes not to recognize the unfavorable tax consequences of increased "assets" and "premium income" until the year in which the premiums are actually paid.16 As the Commissioner forcefully argues, the respondent's position lacks symmetry and the lack thereof redounds entirely to its benefit.
17
(1, 2) We start from the premise that unpaid premiums must be reflected in a life insurance company's reserves.17 This has been the consistent and unbroken practice since the inception of the federal income tax on life insurance companies in 1913. Moreover, the uniform practice of the States since before 1913 has been to require that reserves reflect unpaid premiums. State law is relevant to the statutory definition of reserves, since life insurance reserves generally must be required by state law in order to be recognized for tax purposes. § 801(b)(2). As a matter of state law, a genuine contingent liability exists and must be reflected on the company's financial records. This liability has effects on the company's business which transcend its income tax consequences.18 In view of the critical importance of the definition of reserves in the entire statutory scheme,19 as well as in the conduct of the company's business, the practice of including net unpaid premiums in reserves cannot have been unknown to Congress. It is clear, we think, that no radical departure from past law was intended.
18
Having decided that unpaid premiums must be treated to some extent as though they had actually been paid, the more difficult question is how far to apply this fictional assumption. Since this is essentially an accounting problem, our inquiry is governed by § 818. As its title indicates, § 818 contains the "Accounting provisions" relating to this portion of the Code. Section 818(a) provides:
19
"(a) Method of accounting.
20
"All computations entering into the determination of the taxes imposed by this part shall be made
21
"(1) under an accrual method of accounting, or
22
"(2) to the extent permitted under regulations prescribed by the Secretary or his delegate, under a combination of an accrual method of accounting with any other method permitted by this chapter (other than the cash receipts and disbursements method).
23
"Except as provided in the preceding sentence, all such computations shall be made in a manner consistent with the manner required for purposes of the annual statement approved by the National Association of Insurance Commissioners."
24
The legislative history makes it clear that the accounting procedures established by the NAIC apply if they are "not inconsistent" with accrual accounting rules.20 In other words, except when the rules of accrual accounting indicate a contrary result, NAIC procedures "shall" apply.21
25
With the statutory test in mind, we consider the various proposed solutions to this accounting problem.
B
26
Essentially, the problem in this case to decide the scope to be given a fictional assumption. Four solutions have been proposed.
27
(3) First, as the company argues, the assumption of prepayment could be applied in calculating the reserves, but ignored when calculating assets and income. This was the position taken by the Court of Appeals in this case. That position significantly distorts the tax equation in favor of the taxpayer and against the Government. Although we do not accept the notion that there must be perfect symmetry in the tax laws, there should be a measure of consistency in the accounting treatment of an item affecting interrelated elements in a formula such as that used to calculate the policyholders' share of investment income. We think the Commissioner, and the other Courts of Appeals, see n. 4, supra, properly rejected the entirely one-sided use of the fictional assumption proposed by the taxpayer in this case.
28
Second, we would assume that the entire premium has been paid, but that none of the associated expenses have been incurred. Thus, the fictional assumption would be applied when determining reserves, assets, and gross premium income, but not when determining expenses. This is the position taken by the Commissioner. See Treas. Regs. §§ 1.805, 1.809-4, 26 CFR §§ 1.805-5, 1.809-4 (1976).22 It is obvious that requiring the companies to treat the premium (including loading) as an asset and as income would improperly accelerate their tax payments; for a major share of loading is applied, when it is received, to deductible items such as sales commissions. Thus, to tax the entire loading portion of an unpaid premium is doubly objectionable: It imposes a tax on income the company has not received; and it treats the entire loading as income even though most of it will be disbursed for deductible expenses. The result of accepting the Commissioner's position would be that the insurance company would have a greater tax liability on unpaid premiums than if the premiums had actually been paid. This result is also unacceptable.
29
Third, some Courts of Appeals have extended the fiction somewhat further to include an assumption that certain expenses associated with the unpaid premiums have been incurred.23 These courts allow a deduction for some expenses such as salesmen's commissions, which are payable upon receipt of the premium. It is not clear, however, precisely what expenses would receive this treatment. The approach adopted by these courts eliminates much of the unfairness of the Commissioner's position. But their approach would take us far from the statute. Since there is nothing in the statute directing that any portion of unpaid loading be treated as an asset or as income, the statute obviously cannot provide guidance in fashioning a set of deductions to be credited against the fictional assumption that such loading is income.
30
(4) The fourth approach, in contrast, does have support in the statute. This approach has been adopted by the NAIC for the purpose of preparing the Annual Statement, and therefore is firmly anchored in the text of § 818(a) which establishes a preference for NAIC accounting methods.24 Under this view, the net valuation portion of the unpaid premiums is included in reserves, assets, and gross premium income, while the loading portion is entirely excluded.25 This approach might be described as adopting the fictional assumption that the net valuation portion of the premium has been paid, but that the loading portion was not. This accounting treatment has been consistently applied throughout the industry for decades, and was regarded as the correct approach by the Tax Court when it first confronted this problem area. Western National Life Insurance Co. of Texas v. Commissioner, 51 T.C. 824 (1969), modifying 50 T.C. 285 (1968), rev'd, 432 F.2d 298 (CA5 1970). By including the net valuation portion of the unpaid premium and only that portion on both sides of the relevant equations, it satisfies in large measure the Commissioner's quest for symmetry. It also avoids the uncertainty and confusion that would attend any attempt to segregate unpaid loading into deductible and nondeductible parts. Finally, it provides a practical rule which should minimize the likelihood of future disputes.
31
Under § 818(a), rejection of the NAIC approach would be justified only if it were found inconsistent with the dictates of accrual accounting. But the general rules of accrual accounting simply do not speak to the question of the scope to be given the entirely fictional assumption required by this statute. Any one of the four approaches has an equally good or equally bad claim to being "an accrual method." Since general accounting rules are not controlling, the statute requires use of the NAIC approach to fill the gap.26
32
Accordingly, we conclude that unpaid premiums must be reflected in the computation of respondent's tax liabilities "in a manner consistent with the manner required for purposes of the annual statement approved by the National Association of Insurance Commissioners." To the extent that the Secretary's regulations require different treatment of unpaid premiums, we hold that they are inconsistent with § 818(a) and therefore invalid.
33
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
34
It is so ordered.
35
Mr. Justice STEWART took no part in the consideration or decision of this case.
36
Mr. Justice WHITE, with whom THE CHIEF JUSTICE joins, concurring in the judgment.
37
Regretfully, I cannot join the Court's opinion. The Tax Court's position, which the Court of Appeals rejected, was mandated by the applicable Treasury Regulations, 26 CFR §§ 1.805-5(a)(4)(ii) and 1.809-4(a), (i) (1976). These Regulations, invalidated by the Court of Appeals and now partially by this Court, appear to me to represent a wholly defensible construction of the statute, and we should not refuse to follow it simply because we prefer an alternative reading.
38
The first sentence of § 818(a) provides that all computations shall be pursuant to the accrual method of accounting or, to the extent permitted by the Secretary, under a combination of the accrual method and any other method permitted by the chapter. The second sentence of the section provides that except as provided in the first sentence, all computations shall be consistent with the method required by the annual statement provided by the National Association of Insurance Commissioners (NAIC). As the majority recognizes, under normal accrual accounting methods "unpaid premiums would simply be ignored"; because "the company has no legal right to collect them," ante, at 150, they are mere expectancies and could not be accrued. It is thus a departure from the accrual method of accounting to reflect any part of unpaid premiums in reserves, assets, or income. Under § 818, it seems to me that if there is to be a variance from the accrual method, it is the Secretary who is empowered to say to what extent other methods should be recognized. The section does authorize resort to the NAIC approach in some circumstances, but I do not understand the statute, as the majority does, to prefer the NAIC approach to that of the Secretary. As I understand the statute, the Secretary's regulations are valid and should be followed in this case. As the Tax Court held, all of the unpaid premium, not just the premium less "load," should be reflected in assets and gross premium income. Hence, although I agree that the judgment of the Court of Appeals should be reversed, I cannot join the Court's opinion.
1
See United States v. Consumer Life Ins. Co., 430 U.S. 725, 97 S.Ct. 1440, 52 L.Ed.2d 4.
2
26 U.S.C. §§ 801-820.
3
525 F.2d 786 (CA10 1975).
4
See Jefferson Standard Life Insurance Co. v. United States, 408 F.2d 842 (CA4 1969), cert. denied, 396 U.S. 828, 90 S.Ct. 77, 24 L.Ed.2d 78; Western National Life Insurance Co. of Texas v. Commissioner, 432 F.2d 298 (CA5 1970); Western and Southern Life Insurance Co. v. Commissioner, 460 F.2d 8 (CA6 1972), cert. denied, 409 U.S. 1063, 93 S.Ct. 555, 34 L.Ed.2d 517; Franklin Life Insurance Co. v. United States, 399 F.2d 757 (CA7 1968), cert. denied, 393 U.S. 1118, 89 S.Ct. 989, 22 L.Ed.2d 122.
5
We are informed that substantially more than $100 million is in dispute. Pet. for Cert. 8.
6
See, e. g., Tariff Act of 1913, § II(G)(b), 38 Stat. 173; Revenue Act of 1916, § 12(a) Second, 39 Stat. 768; Revenue Act of 1918, § 234(a)(10), 40 Stat. 1079.
7
In Prudential Ins. Co. of America v. Herold, 247 F. 681 (N.J.1918), the Government argued that the taxpayer was not entitled to credit for the full value of its reserves because the deferred and uncollected premiums had not been included in its taxable income. The court examined and rejected the argument:
"The question to be decided, therefore, is whether the plaintiff, in figuring its net addition to the reserve funds which it was required by law to make, was justified in including the value of such policies. The argument upon which the defendant's contention in this respect is based seems to be that as part of the assets making up the plaintiff's 'reserve' consisted of these uncollected and deferred premiums, and as they are not included in the plaintiff's gross income (as, clearly, they should not be so included, Mutual Benefit Life Ins. Co. v. Herold (198 F. 199 (N.J.1912)); Conn. Gen. Life Ins. Co. v. Eaton (218 F. 188 (Conn.1914))), that the value of such policies should not be included, for purposes of taxation, in its net addition to reserve funds. But this argument, I think, begs the question, which is, as clearly defined by the Supreme Court in McCoach v. Insurance Co. of North America, 244 U.S. 585, 37 S.Ct. 709, 61 L.Ed. 1333, what sum or sums in the aggregate did the state laws require the plaintiff to maintain as a reserve fund, not the character of the assets making up the actual 'reserve funds'. No matter what their character, they were as effectively withdrawn from the plaintiff's use as if they had been expended. If therefore the law of New Jersey, or any other state in which it did business, made it obligatory on the part of the plaintiff to maintain a 'reserve' on account of the policies of the character in question, it is of no materiality what the 'reserve funds' actually consisted of, whether cash, securities, real estate, or due and uncollected premiums." Id., at 685-686.
Subsequently, the Bureau of Internal Revenue acquiesced. In a bulletin issued to its employees the Bureau said: "The legal reserves . . . can not be reduced by the net uncollected and deferred premiums." Treas.Dept., Bureau of Internal Revenue, Bulletin H, Income Tax Rulings Peculiar to Insurance Companies (1921), Ruling 14, p. 9. See also Ruling 8, p. 7.
8
See, e. g., Revenue Act of 1921, § 244(a), 42 Stat. 261.
9
The tax was levied only on net investment income, that is, the excess over the amount deemed necessary to pay death claims. If, for example, the amount of the net valuation premium had been calculated on the assumption that the company would receive a 4% return on its investment of premiums between the time of its payment and the death of the policyholder, and it actually realized 5%, the tax applied to the net of 1%. This deduction reflects the assumption that interest on net premiums, as well as the premiums themselves, would be needed to satisfy death claims, and that only investment income greater than the amount projected in the determination of net premiums should be taxed. Revenue Act of 1921, § 245(a)(2), 42 Stat. 261; Revenue Act of 1924, § 245(a) (2), 43 Stat. 289; Revenue Act of 1926, § 245(a)(2), 44 Stat. (pt. 2) 47; Revenue Act of 1928, § 203(a)(2), 45 Stat. 843; Revenue Act of 1932, § 203(a) (2), 47 Stat. 224; Revenue Act of 1934, § 203(a)(2), 48 Stat. 732; Revenue Act of 1936, § 203(a)(2), 49 Stat. 1711; Revenue Act of 1938, § 203(a)(2), 52 Stat. 523; Internal Revenue Code of 1939, § 203(a), 26 U.S.C. § 203(a) (1952 ed.).
10
Like the parties, we will emphasize the role of these concepts in the relevant calculations. Other factors involved in the calculations, such as pension plan reserves and real estate transactions, have little significance for the purpose of decision of this case.
11
Section 802(b) provides:
"Life insurance company taxable income defined.
"For purposes of this part, the term 'life insurance company taxable income' means the sum of
"(1) the taxable investment income (as defined in section 804) or, if smaller, the gain from operations (as defined in section 809),
"(2) if the gain from operations exceeds the taxable investment income, an amount equal to 50 percent of such excess, plus
"(3) the amount subtracted from the policyholders surplus account for the taxable year, as determined under section 815."
12
For the purpose of this discussion, we assume that the gain from operations is greater than investment income. As the statute makes clear, § 802(b)(1), only the gain from operations is taxed if that figure is less than the taxable investment income, a situation which would probably arise only if the company lost money on its noninvestment operations.
13
"The 1959 Act defines life insurance company reserves, provides a rather intricate method for establishing the amount which for tax purposes is deemed to be added each year to these reserves and in § 804 prescribes a division of the investment income of an insurance company into two parts, the policyholders' share and the company's share. More specifically, the total amount to be added to the reserve the policy and other contract liability requirements is divided by the total investment yield and the resulting percentage is used to allocate each item of investment income, including tax-exempt interest, partly to the policyholders and partly to the company. In this case, approximately 85% of each item of income was assigned to the policyholders and was, as the Act provides, excluded from the company's taxable income." United States v. Atlas Ins. Co., 381 U.S. 233, 236-237, 85 S.Ct. 1379, 1381, 14 L.Ed.2d 358 (footnotes omitted).
14
Actually, the computation is made in two steps. An earnings rate is determined by dividing the company's investment yield by its assets (§ 805(b) (2)). This earnings rate must be derived from a four-year average of earnings if such an average is lower than the current earnings rate (§ 805(b)(1) and (3)). The adjusted life insurance reserves are determined by comparing the company's actual earnings rate with the rate which was assumed when the reserves were calculated; for each one point of additional earnings rate there is a 10% decrease in the value of the reserve account, and vice versa (§ 805(c) (1)). The earnings rate is multiplied by the adjusted life insurance reserve (§ 805(a)(1)), and added with some other factors not germane here to yield the "policy and other contract liability requirements" (§ 805(a)).
In the second step of the computation, the "policy and other contract liability requirements" are divided by the investment yield to determine the percentage which is the policyholders' share (§ 804(a)(1)). The investment yield is the gross investment income less deductible expenses, depreciation and depletion (§ 804(c)).
15
For purposes of determining gain from operations, the company's share is determined under §§ 809(a) and (b)(3). Section 809(a) defines the policyholder's share as the percentage obtained by dividing the required interest (the rate of interest used to calculate the reserves, multiplied by the amount of the reserves) by the investment yield. This formula is somewhat simpler than that used in §§ 804 and 805 for purposes of calculating taxable investment income.
16
In this case, although the Commissioner recomputed respondent's tax for the entire period from 1958 through 1961, the adjustments resulted in no deficiency for 1960.
17
We therefore reject the Commissioner's alternative position, that unpaid premiums should be ignored in calculating reserves, assets, and gross premium income.
18
The Commissioner does not contend otherwise. Tr. of Oral Arg. 19.
19
For example, the definition is also controlling on the question whether a company qualifies as a "life insurance company" within the meaning of the statute. See United States v. Consumer Life Ins. Co., 430 U.S. 725, 97 S.Ct. 1440, 52 L.Ed.2d 4.
20
The Senate Report describes the provision as follows:
"(a) Method of accounting. Subsection (a) of section 818, which is identical with the House bill, provides the general rule that all computations entering into the determination of taxes imposed by the new part I of subchapter L shall be made under an accrual method of accounting. This subsection further provides that, to the extent permitted under regulations prescribed by the Secretary or his delegate, a life insurance company may determine its taxes under a combination of an accrual method of accounting with any other method permitted by chapter 1 (other than the cash receipts and disbursements method). For example, the Secretary or his delegate may determine that the use of the installment method for reporting sales of realty and casual sales of personalty (see sec. 453(b)) may, in combination with an accrual method of accounting, properly reflect life insurance company taxable income. To the extent not inconsistent with the provision of the 1954 Code and an accrual method of accounting, all computations entering into the determination of taxes imposed by the new part I shall be made in a manner
consistent with the manner required for purposes of the annual statement approved by the National Association of Insurance Commissioners." S.Rep.No.291, 86th Cong., 1st Sess., 72-73, U.S.Code Cong. & Admin.News 1959, pp. 1575, 1648 (1959).
The same language is used in the House Report, H.R.Rep.No.34, 86th Cong., 1st Sess., 42 (1959).
21
The mandatory language contained in the provision requiring consistency with the NAIC statement is to be contrasted with the permissive language used to describe accounting methods covered by the Secretary's regulations. Section 818(a)(2) merely allows the Secretary to permit deviations from accrual accounting. Since this case does not concern any optional method allowed by the Secretary, this provision does not concern us here.
22
These Regulations cite unpaid premiums as examples of assets (§ 1.805-5, Example (1)) and include these premiums as part of the "gross premiums" used in calculating gain from operations (§ 1.809-4(a)(1)).
In addition, § 1.801-4(f) provides that "(i)n the event it is determined on the basis of the facts of a particular case that (unpaid premiums) are not properly accruable for the taxable year . . . and, accordingly, are not properly includible under assets . . . appropriate reduction shall be made in the life insurance reserves." Based on the latter Regulation, the Commissioner makes an alternative argument that unpaid premiums should be disregarded for all purposes, including computations of reserves. We reject this argument for the reasons stated in Part III-A.
23
Great Commonwealth Life Insurance Co. v. United States, 491 F.2d 109 (CA5 1974); Federal Life Insurance Co. v. United States, 527 F.2d 1096 (CA7 1975); North American Life & Cas. Co. v. Comm'r, 533 F.2d 1046 (CA8 1976).
24
Evidence of congressional respect for NAIC accounting methods is not limited to the portion of the Code concerning life insurance companies. In defining "gross income" and "expenses incurred" for purposes of taxing certain other insurance companies, Congress expressly requires computations to follow "the annual statement approved by the National Convention of Insurance Commissioners." 26 U.S.C. §§ 832(b)(1)(A), (b)(6).
25
The American Council of Life Insurance has filed a brief as amicus curiae and made oral argument urging adoption of this position.
26
The first Court of Appeals to consider this argument rejected it on the ground that Congress would not have intended "to relegate the substantive matter of offsetting or excluding loading on deferred and uncollected premiums, with its concomitant impact on the resulting tax, to the NAIC." Franklin Life Insurance Co. v. United States, 399 F.2d, at 760. We think that § 818(a) gives the NAIC precisely this role of filling the gaps in the statutory treatment of accounting problems like this one.
| 1112
|
433 U.S. 229
97 S.Ct. 2593
53 L.Ed.2d 714
Benson A. WOLMAN et al., Appellants,v.Franklin B. WALTER et al.
No. 76-496.
Argued April 25, 1977.
Decided June 24, 1977.
Syllabus
Appellants, citizens and taxpayers of Ohio, brought this action against appellees, certain state officials and others, challenging the constitutionality of all but one of the provisions of Ohio Rev.Code Ann. § 3317.06 (Supp.1976) authorizing various forms of aid to nonpublic schools, most of which are sectarian. The Ohio scheme authorizes funding for use of nonpublic schoolchildren within the district where the nonpublic school is located for the following purposes: (1) purchasing secular textbooks approved by the superintendent of public instruction for use in public schools for loan to the children or their parents, on the request of either, made to the nonpublic school (§ 3317.06(A)); (2) supplying such standardized tests and scoring services as are used in the public schools, with nonpublic school personnel not being involved in the test drafting or scoring, and no financial aid being involved (§ 3317.06(J)); (3) providing speech and hearing diagnostic services and diagnostic psychological services in the nonpublic schools, with the personnel (except for physicians) performing the services being local board of education employees, physicians being hired on a contract basis, and treatment to be administered on nonpublic school premises (§§ 3317.06(D), (F)); (4) supplying to students needing specialized attention therapeutic, guidance, and remedial services by employees of the local board of education or the State Department of Health, the services to be performed only in public schools, public centers, or in mobile units located off nonpublic school premises (§§ 3317.06(G), (H), (I), (K)); (5) purchasing and loaning to pupils or their parents upon individual request instructional materials and instructional equipment of the kind used in the public schools and that is "incapable of diversion to religious use" (§§ 3317.06(B), (C)); and (6) providing field trip transportation and services such as are provided to public school students, special contract transportation being permissible if school district buses are unavailable (§ 3317.06(L)). A three-judge District Court held the statute constitutional in all respects. Held: Those portions of § 3317.06 authorizing the State to provide nonpublic school pupils with books, standardized testing and scoring, diagnostic services, and therapeutic and remedial services are constitutional. Those portions relating to instructional materials and equipment and field trip services are unconstitutional. Pp. 235-255; 255.
417 F.Supp. 1113, affirmed in part, reversed in part.
Mr. Justice BLACKMUN delivered the opinion of the Court with respect to Parts I, V, VI, VII, and VIII, finding that:
1
1. Providing diagnostic services on the nonpublic school premises will not create an impermissible risk of fostering ideological views; hence there is no need for excessive surveillance and there will not be impermissible church-state entanglement. The provision of health services to nonpublic as well as public school children does not have the primary effect of aiding religion, Lemon v. Kurtzman, 403 U.S. 602, 616-617, 91 S.Ct. 2105, 2113, 29 L.Ed.2d 745; see also Meek v. Pittenger, 421 U.S. 349, 364, 368 n. 17, 95 S.Ct. 1753, 1762, 1764, 44 L.Ed.2d 217. Appellants do not challenge that part of the statute authorizing physician, nursing, dental, and optometric services for nonpublic schools (§ 3317.06(E)), and there is no basis for drawing a different conclusion with respect to diagnostic speech and hearing services and diagnostic psychological services. Diagnostic services, unlike teaching and counseling, have little or no educational content, and the limited contact that the diagnostician has with the child does not provide the same opportunity for transmitting sectarian views as does the teacher/counselor-student relationship. Sections 3317.06(D) and (F) are constitutional. Pp. 241-244.
2
2. The therapeutic, guidance, and remedial services, which (including those rendered in mobile units) are to be offered only on sites that are not physically or educationally identified with the nonpublic school, will not have the impermissible effect of advancing religion. Since those services will be administered by public employees, no excessive entanglement is created. Sections 3317.06(G), (H), (I), and (K) are constitutional. Pp. 24-248.
3
3. Even though the loan for instructional material and equipment is ostensibly limited to neutral and secular instructional material and equipment, it inescapably has the primary effect of providing a direct and substantial advancement of sectarian education, Meek v. Pittenger, supra, at 366, 95 S.Ct., at 1763. It is impossible to separate the secular education function from the sectarian, and hence the state aid in part inevitably supports the religious role of the schools. Sections 3317.06(B) and (C) are unconstitutional. Pp. 248-251.
4
4. The nonpublic schools, which can control the timing and frequency of the field trips, are the recipients of the service rather than the children, and the funding of such trips (like the impermissible funding of maps and charts in Meek v. Pittenger ) is an impermissible direct aid to sectarian education, and the close supervision of nonpublic school teachers necessary to ensure secular use of field trip funds would involve excessive entanglement. Lemon v. Kurtzman, supra, 403 U.S., at 619, 91 S.Ct., at 2114. Section 3317.06(L) is unconstitutional. Pp. 252-255.
5
Mr. Justice BLACKMUN, joined by THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice POWELL, concluded:
6
1. In order to pass constitutional muster under the Establishment Clause a statute (1) must have a secular legislative purpose; (2) must have a principal or primary effect that neither advances nor inhibits religion; and (3) must not foster an excessive government entanglement with religion. See Roemer v. Maryland Public Works Bd., 426 U.S. 736, 748, 96 S.Ct. 2337, 2345, 49 L.Ed.2d 179; Committee for Public Education v. Nyquist, 413 U.S. 756 at 772-773, 93 S.Ct. 2955, at 2965-2966, 37 L.Ed.2d 948; Lemon v. Kurtzman, supra, 403 U.S., at 612, 613, 91 S.Ct., at 2111. Pp. 235-236.
7
2. The textbook loan system is strikingly similar to the systems approved in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060, and Meek v. Pittenger, supra, which are followed. Section 3317.06(A) is constitutional. Pp. 236-238.
8
3. The testing and scoring program, in which the State has a substantial interest to ensure that state educational standards are met, is not controlled by the nonpublic school and thus there is no direct aid to religion or need for supervision. Levitt v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736, distinguished. Section 3317.06(J) is constitutional. Pp. 238-241.
9
Mr. Justice WHITE and Mr. Justice REHNQUIST concurred in the judgment with respect to textbooks and testing and scoring (as well as diagnostic and therapeutic services) for the reasons stated in Meek v. Pittenger, 421 U.S. 349, 387, 95 S.Ct. 1753, 1774, 44 L.Ed.2d 217. (REHNQUIST, J., concurring in judgment in part, dissenting in part), and Committee for Public Education v. Nyquist, 413 U.S. 756, 813, 93 S.Ct. 2955, 2982, 37 L.Ed.2d 948 (WHITE, J., dissenting). P. 255.
10
Joshua J. Kancelbaum, Cleveland, Ohio, for appellants.
11
Thomas V. Martin and David J. Young, Cincinnati, Ohio, for appellees.
12
Mr. Justice BLACKMUN delivered the opinion of the Court (Parts I, V, VI, VII, and VIII), together with an opinion (Parts II, III, and IV), in which THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice POWELL joined.
13
This is still another case presenting the recurrent issue of the limitations imposed by the Establishment Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment, Meek v. Pittenger, 421 U.S. 349, 351, 95 S.Ct. 1753, 1756, 44 L.Ed.2d 217 (1975) on state aid to pupils in church-related elementary and secondary schools. Appellants are citizens and taxpayers of Ohio. They challenge all but one of the provisions of Ohio Rev.Code Ann. § 3317.06 (Supp.1976) which authorize various forms of aid. The appellees are the State Superintendent of Public Instruction, the State Treasurer, the State Auditor, the Board of Education of the City School District of Columbus, Ohio, and, at their request, certain representative potential beneficiaries of the statutory program. A three-judge court was convened. It held the statute constitutional in all respects. Wolman v. Essex, 417 F.Supp. 1113 (ND Ohio 1976). We noted probable jurisdiction. 429 U.S. 1037, 97 S.Ct. 730, 50 L.Ed.2d 747 (1977).
14
* Section 3317.06 was enacted after this Court's May 1975 decision in Meek v. Pittenger, supra, and obviously is an attempt to conform to the teachings of that decision.1 The state appellees so acknowledged at oral argument. Tr. of Oral Arg. 21. In broad outline, the statute authorizes the State to provide nonpublic school pupils with books, instructional materials and equipment, standardized testing and scoring, diagnostic services, therapeutic services, and field trip transportation.
15
The initial biennial appropriation by the Ohio Legislature for implementation of the statute was the sum of $88,800,000.2 App. 27. Funds so appropriated are paid to the State's public school districts and are then expended by them. All disbursements made with respect to nonpublic schools have their equivalents in disbursements for public schools, and the amount expended per pupil in nonpublic schools may not exceed the amount expended per pupil in the public schools.
16
The parties stipulated that during the 1974-1975 school year there were 720 chartered nonpublic schools in Ohio. Of these, all but 29 were sectarian. More than 96% of the nonpublic enrollment attended sectarian schools, and more than 92% attended Catholic schools. Id., at 28-29. It was also stipulated that, if they were called, officials of representative Catholic schools would testify that such schools operate under the general supervision of the bishop of their diocese; that most principals are members of a religious order within the Catholic Church; that a little less than one-third of the teachers are members of such religious orders; that "in all probability a majority of the teachers are members of the Catholic faith"; and that many of the rooms and hallways in these schools are decorated with a Christian symbol. Id., at 30-33. All such schools teach the secular subjects required to meet the State's minimum standards. The state-mandated five-hour day is expanded to include, usually, one-half hour of religious instruction. Pupils who are not members of the Catholic faith are not required to attend religion classes or to participate in religious exercises or activities, and no teacher is required to teach religious doctrine as a part of the secular courses taught in the schools. Ibid.
17
The parties also stipulated that nonpublic school officials, if called, would testify that none of the schools covered by the statute discriminate in the admission of pupils or in the hiring of teachers on the basis of race, creed, color, or national origin. Id., at 29.3
The District Court concluded:
18
"Although the stipulations of the parties evidence several significant points of distinction, the character of these schools is substantially comparable to that of the schools involved in Lemon v. Kurtzman, 403 U.S. 602, 615-618, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)." 417 F.Supp., at 1116.4
II
19
The mode of analysis for Establishment Clause questions is defined by the three-part test that has emerged from the Court's decisions. In order to pass muster, a statute must have a secular legislative purpose, must have a principal or primary effect that neither advances nor inhibits religion, and must not foster an excessive government entanglement with religion. See Roemer v. Maryland Public Works Bd., 426 U.S. 736, 748, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976); Committee for Public Education v. Nyquist, 413 U.S. 756, 772-773, 93 S.Ct. 2955, 2965-2966, 37 L.Ed.2d 948 (1973); Lemon v. Kurtzman, 403 U.S. 602, 612, 613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).
20
In the present case we have no difficulty with the first prong of this three-part test. We are satisfied that the challenged statute reflects Ohio's legitimate interest in protecting the health of its youth and in providing a fertile educational environment for all the schoolchildren of the State.5 As is usual in our cases, the analytical difficulty has to do with the effect and entanglement criteria.
21
We have acknowledged before, and we do so again here, that the wall of separation that must be maintained between church and state "is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." Lemon, 403 U.S., at 614, 91 S.Ct., at 2112. Nonetheless, the Court's numerous precedents "have become firmly rooted," Nyquist, 413 U.S., at 761, 93 S.Ct., at 2959, and now provide substantial guidance. We therefore turn to the task of applying the rules derived from our decisions to the respective provisions of the statute at issue.
III
Textbooks
22
Section 3317.06 authorizes the expenditure of funds:
23
"(A) To purchase such secular textbooks as have been approved by the superintendent of public instruction for use in public schools in the state and to loan such textbooks to pupils attending nonpublic schools within the district or to their parents. Such loans shall be based upon individual requests submitted by such nonpublic school pupils or parents. Such requests shall be submitted to the local public school district in which the nonpublic school is located. Such individual requests for the loan of textbooks shall, for administrative convenience, be submitted by the nonpublic school pupil or his parent to the nonpublic school which shall prepare and submit collective summaries of the individual requests to the local public school district. As used in this section, 'textbook' means any book or book substitute which a pupil uses as a text or text substitute in a particular class or program in the school he regularly attends."
24
The parties' stipulations reflect operation of the textbook program in accord with the dictates of the statute. In addition, it was stipulated:
25
"The secular textbooks used in nonpublic schools will be the same as the textbooks used in the public schools of the state. Common suppliers will be used to supply books to both public and nonpublic school pupils." App. 35.
26
"Textbooks, including book substitutes, provided under this Act shall be limited to books, reusable workbooks, or manuals, whether bound or in looseleaf form, intended for use as a principal source of study material for a given class or group of students, a copy of which is expected to be available for the individual use of each pupil in such class or group." Id., at 36.
27
This system for the loan of textbooks to individual students bears a striking resemblance to the systems approved in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), and in Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975).6 Indeed, the only distinction offered by appellants is that the challenged statute defines "textbook" as "any book or book substitute." Appellants argue that a "book substitute" might include auxiliary equipment and materials that, they assert, may not constitutionally be loaned. See Part VII, infra. We find this argument untenable in light of the statute's separate treatment of instructional materials and equipment in its subsections (B) and (C), and in light of the stipulation defining textbooks as "limited to books, reusable workbooks, or manuals." Appellants claim that the stipulation shows only the intent of the Department of Education, App. 49, and that the statute is so vague as to fail to insure against sectarian abuse of the assistance programs, citing Meek, 421 U.S., at 372, 95 S.Ct., at 1766, and Lemon, 403 U.S., at 619, 91 S.Ct., at 2114. We find no grounds, however, to doubt the Board of Education's reading of the statute, or to fear that the Board is using the stipulations as a subterfuge. As read, the statute provides the same protections against abuse as were provided in the textbook programs under consideration in Allen and in Meek.
28
In the alternative, appellants urge that we overrule Allen and Meek. This we decline to do. Accordingly, we conclude that § 3317.06(A) is constitutional.
IV
Testing and Scoring
29
Section 3317.06 authorizes expenditure of funds:
30
"(J) To supply for use by pupils attending nonpublic schools within the district such standardized tests and scoring services as are in use in the public schools of the state."
31
These tests "are used to measure the progress of students in secular subjects." App. 48. Nonpublic school personnel are not involved in either the drafting or scoring of the tests. 417 F.Supp., at 1124. The statute does not authorize any payment to nonpublic school personnel for the costs of administering the tests.7
32
In Levitt v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973), this Court invalidated a New York statutory scheme for reimbursement of church-sponsored schools for the expenses of teacher-prepared testing. The reasoning behind that decision was straightforward. The system was held unconstitutional because "no means are available, to assure that internally prepared tests are free of religious instruction."8 Id., at 480, 93 S.Ct., at 2819.
33
There is no question that the State has a substantial and legitimate interest in insuring that its youth receive an adequate secular education. Id., at 479-480, n. 7, 93 S.Ct., at 2819. The State may require that schools that are utilized to fulfill the State's compulsory-education requirement meet certain standards of instruction, Allen, 392 U.S., at 245, 246, and n. 7, 88 S.Ct., at 1927, 1928, and may examine both teachers and pupils to ensure that the State's legitimate interest is being fulfilled. Levitt, 413 U.S., at 479-480, n. 7, 93 S.Ct., at 2818-2819; Lemon, 403 U.S., at 614, 91 S.Ct., at 2112. See App. 28. Cf. Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). Under the section at issue, the State provides both the schools and the school district with the means of ensuring that the minimum standards are met. The nonpublic school does not control the content of the test or its result. This serves to prevent the use of the test as a part of religious teaching, and thus avoids that kind of direct aid to religion found present in Levitt. Similarly, the inability of the school to control the test eliminates the need for the supervision that gives rise to excessive entanglement. We therefore agree with the District Court's conclusion that § 3317.06(J) is constitutional.
V
Diagnostic Services
34
Section 3317.06 authorizes expenditures of funds:
35
"(D) To provide speech and hearing diagnostic services to pupils attending nonpublic schools within the district. Such service shall be provided in the nonpublic school attended by the pupil receiving the service.
36
"(F) To provide diagnostic psychological services to pupils attending nonpublic schools within the district. Such services shall be provided in the school attended by the pupil receiving the service."9
37
It will be observed that these speech and hearing and psychological diagnostic services are to be provided within the nonpublic school. It is stipulated, however, that the personnel (with the exception of physicians) who perform the services are employees of the local board of education; that physicians may be hired on a contract basis; that the purpose of these services is to determine the pupil's deficiency or need of assistance; and that treatment of any defect so found would take place off the nonpublic school premises. App. 37-38. See Part VI, infra.
38
Appellants assert that the funding of these services is constitutionally impermissible. They argue that the speech and hearing staff might engage in unrestricted conversation with the pupil and, on occasion, might fail to separate religious instruction from secular responsibilities. They further assert that the communication between the psychological diagnostician and the pupil will provide an impermissible opportunity for the intrusion of religious influence.
39
The District Court found these dangers so insubstantial as not to render the statute unconstitutional. 417 F.Supp., at 1121-1122. We agree. This Court's decisions contain a common thread to the effect that the provision of health services to all schoolchildren public and nonpublic does not have the primary effect of aiding religion. In Lemon v. Kurtzman, the Court stated:
40
"Our decisions from Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947),) to Allen have permitted the States to provide church-related schools with secular, neutral, or nonideological services, facilities, or materials. Bus transportation, school lunches, public health services, and secular textbooks supplied in common to all students were not thought to offend the Establishment Clause." 403 U.S., at 616-617, 91 S.Ct., at 2113 (emphasis added).
41
See also Meek v. Pittenger, 421 U.S., at 364, 368 n. 17, 95 S.Ct., at 1762, 1764. Indeed, appellants recognize this fact in not challenging subsection (E) of the statute that authorizes publicly funded physician, nursing, dental, and optometric services in nonpublic schools.10 We perceive no basis for drawing a different conclusion with respect to diagnostic speech and hearing services and diagnostic psychological services.
42
In Meek the Court did hold unconstitutional a portion of a Pennsylvania statute at issue there that authorized certain auxiliary services "remedial and accelerated instruction, guidance counseling and testing, speech and hearing services" on nonpublic school premises. Id., at 367, 95 S.Ct., at 1764. The Court noted that the teacher or guidance counselor might "fail on occasion to separate religious instruction and the advancement of religious beliefs from his secular educational responsibilities." Id., at 371, 95 S.Ct., at 1766. The Court was of the view that the publicly employed teacher or guidance counselor might depart from religious neutrality because he was "performing important educational services in schools in which education is an integral part of the dominant sectarian mission and in which an atmosphere dedicated to the advancement of religious belief is constantly maintained." Ibid. The statute was held unconstitutional on entanglement grounds, namely, that in order to insure that the auxiliary teachers and guidance counselors remained neutral, the State would have to engage in continuing surveillance on the school premises.11 Id., at 372, 95 S.Ct., at 1766. See also Public Funds for Public Schools v. Marburger, 358 F.Supp. 29, 40 (NJ 1973), summarily aff'd, 417 U.S. 961, 94 S.Ct. 3163, 41 L.Ed.2d 1134 (1974). The Court in Meek explicitly stated, however, that the provision of diagnostic speech and hearing services by Pennsylvania seemed "to fall within that class of general welfare services for children that may be provided by the State regardless of the incidental benefit that accrues to church-related schools." 421 U.S., at 371 n. 21, 95 S.Ct., at 1766. The provision of such services was invalidated only because it was found unseverable from the unconstitutional portions of the statute. Ibid.
43
The reason for considering diagnostic services to be different from teaching or counseling is readily apparent. First, diagnostic services, unlike teaching or counseling, have little or no educational content and are not closely associated with the educational mission of the nonpublic school. Accordingly, any pressure on the public diagnostician to allow the intrusion of sectarian views is greatly reduced. Second, the diagnostician has only limited contact with the child, and that contact involves chiefly the use of objective and professional testing methods to detect students in need of treatment. The nature of the relationship between the diagnostician and the pupil does not provide the same opportunity for the transmission of sectarian views as attends the relationship between teacher and student or that between counselor and student.
44
We conclude that providing diagnostic services on the nonpublic school premises will not create an impermissible risk of the fostering of ideological views. It follows that there is no need for excessive surveillance, and there will not be impermissible entanglement. We therefore hold that §§ 3317.06(D) and (F) are constitutional.
VI
Therapeutic Services
45
Sections 3317.06(G), (H), (I), and (K) authorize expenditures of funds for certain therapeutic, guidance, and remedial services for students who have been identified as having a need for specialized attention.12 Personnel providing the services must be employees of the local board of education or under contract with the State Department of Health. The services are to be performed only in public schools, in public centers, or in mobile units located off the nonpublic school premises. App. 42. The parties have stipulated: "The determination as to whether these programs would be offered in the public school, public center, or mobile unit will depend on the distance between the public and nonpublic school, the safety factors involved in travel, and the adequacy of accommodations in public schools and public centers." Ibid.
46
Appellants concede that the provision of remedial, therapeutic, and guidance services in public schools, public centers, or mobile units is constitutional if both public and nonpublic school students are served simultaneously. Brief for Appellants 41-42, 46.13 Their challenge is limited to the situation where a facility is used to service only nonpublic school students. They argue that any program that isolates the sectarian pupils is impermissible because the public employee providing the service might tailor his approach to reflect and reinforce the ideological view of the sectarian school attended by the children. Such action by the employee, it is claimed, renders direct aid to the sectarian institution. Appellants express particular concern over mobile units because they perceive a danger that such a unit might operate merely as an annex of the school or schools it services.
47
At the outset, we note that in its present posture the case does not properly present any issue concerning the use of a public facility as an adjunct of a sectarian educational enterprise. The District Court construed the statute, as do we, to authorize services only on sites that are "neither physicallynor educationally identified with the functions of the nonpublic school." 417 F.Supp., at 1123. Thus, the services are to be offered under circumstances that reflect their religious neutrality.
48
We recognize that, unlike the diagnostician, the therapist may establish a relationship with the pupil in which there might be opportunities to transmit ideological views. In Meek the Court acknowledged the danger that publicly employed personnel who provide services analogous to those at issue here might transmit religious instruction and advance religious beliefs in their activities. But, as discussed in Part V, supra, the Court emphasized that this danger arose from the fact that the services were performed in the pervasively sectarian atmosphere of the church-related school. 421 U.S., at 371, 95 S.Ct., at 1766. See also Lemon, 403 U.S., at 618-619, 91 S.Ct., at 2113-2114. The danger existed there, not because the public employee was likely deliberately to subvert his task to the service of religion, but rather because the pressures of the environment might alter his behavior from its normal course. So long as these types of services are offered at truly religiously neutral locations, the danger perceived in Meek does not arise.
49
The fact that a unit on a neutral site on occasion may serve only sectarian pupils does not provoke the same concerns that troubled the Court in Meek.14 The influence on a therapist's behavior that is exerted by the fact that he serves a sectarian pupil is qualitatively different from the influence of the pervasive atmosphere of a religious institution. The dangers perceived in Meek arose from the nature of the institution, not from the nature of the pupils.
50
Accordingly, we hold that providing therapeutic and remedial services at a neutral site off the premises of the nonpublic schools will not have the impermissible effect of advancing religion. Neither will there be any excessive entanglement arising from supervision of public employees to insure that they maintain a neutral stance. It can hardly be said that the supervision of public employees performing public functions on public property creates an excessive entanglement between church and state. Sections 3317.06(G), (H), (I), and (K) are constitutional.
VII
Instructional Materials and Equipment
51
Sections 3317.06(B) and (C) authorize expenditures of funds for the purchase and loan to pupils or their parents upon individual request of instructional materials and instructional equipment of the kind in use in the public schools within the district and which is "incapable of diversion to religious use."15 Section 3317.06 also provides that the materials and equipment may be stored on the premises of a nonpublic school and that publicly hired personnel who administer the lending program may perform their services upon the nonpublic school premises when necessary "for efficient implementation of the lending program."
52
Although the exact nature of the material and equipment is not clearly revealed, the parties have stipulated: "It is expected that materials and equipment loaned to pupils or parents under the new law will be similar to such former materials and equipment except that to the extent that the law requires that materials and equipment capable of diversion to religious issues will not be supplied." App. 36.16 Equipment provided under the predecessor statute, invalidated as set forth in n. 1, supra, included projectors, tape recorders, record players, maps and globes, science kits, weather forecasting charts, and the like. The District Court, 417 F.Supp., at 1117, found the new statute, as now limited, constitutional because the court could not distinguish the loan of material and equipment from the textbook provisions upheld in Meek, 421 U.S., at 359-362, 95 S.Ct. at 1760-1762, and in Allen, 392 U.S., at 248, 88 S.Ct., at 1929.
53
In Meek, however, the Court considered the constitutional validity of a direct loan to nonpublic schools of instructional material and equipment, and, despite the apparent secular nature of the goods, held the loan impermissible. Mr. Justice Stewart, in writing for the Court, stated:
54
"The very purpose of many of those schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and belief. See Lemon v. Kurtzman, 403 U.S., at 616-617, 91 S.Ct. (2105) at 2113. Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole. '(T)he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined.' Id., at 657, 91 S.Ct. (2105) at 2133. (opinion of Brennan, J.)." 421 U.S., at 366, 95 S.Ct., at 1763.
55
Thus, even though the loan ostensibly was limited to neutral and secular instructional material and equipment, it inescapably had the primary effect of providing a direct and substantial advancement of the sectarian enterprise.
56
Appellees seek to avoid Meek by emphasizing that it involved a program of direct loans to nonpublic schools. In contrast, the material and equipment at issue under the Ohio statute are loaned to the pupil or his parent. In our view, however, it would exalt form over substance if this distinction were found to justify a result different from that in Meek. Before Meek was decided by this Court, Ohio authorized the loan of material and equipment directly to the nonpublic schools. Then, in light of Meek, the state legislature decided to channel the goods through the parents and pupils. Despite the technical change in legal bailee, the program in substance is the same as before: The equipment is substantially the same; it will receive the same use by the students; and it may still be stored and distributed on the nonpublic school premises. In view of the impossibility of separating the secular education function from the sectarian, the state aid inevitably flows in part in support of the religious role of the schools.
57
Indeed, this conclusion is compelled by the Court's prior consideration of an analogous issue in Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). There the Court considered, among others, a tuition reimbursement program whereby New York gave low-income parents who sent their children to nonpublic schools a direct and unrestricted cash grant of $50 to $100 per child (but no more than 50% of tuition actually paid). The State attempted to justify the program, as Ohio does here, on the basis that the aid flowed to the parents rather than to the church-related schools. The Court observed, however, that, unlike the bus program in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), and the book program in Allen, there "has been no endeavor 'to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former.' " 413 U.S., at 783, 93 S.Ct., at 2970, quoting Lemon v. Kurtzman, 403 U.S., at 613, 91 S.Ct., at 2111. The Court thus found that the grant program served to establish religion. If a grant in cash to parents is impermissible, we fail to see how a grant in kind of goods furthering the religious enterprise can fare any better.17 Accordingly, we hold §§ 3317.06(B) and (C) to be unconstitutional.18
VIII
Field Trips
58
Section 3317.06 also authorizes expenditures of funds:
59
"(L) To provide such field trip transportation and services to nonpublic school students as are provided to public school students in the district. School districts may contract with commercial transportation companies for such transportation service if school district busses are unavailable."
60
There is no restriction on the timing of field trips; the only restriction on number lies in the parallel the statute draws to field trips provided to public school students in the district. The parties have stipulated that the trips "would consist of visits to governmental, industrial, cultural, and scientific centers designed to enrich the secular studies of students." App. 49. The choice of destination, however, will be made by the nonpublic school teacher from a wide range of locations.
61
The District Court, 417 F.Supp., at 1124-1125, held this feature to be constitutionally indistinguishable from that with which the Court was concerned in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). We do not agree. In Everson the Court approved a system under which a New Jersey board of education reimbursed parents for the cost of sending their children to and from school, public or parochial, by public carrier. The Court analogized the reimbursement to situations where a municipal common carrier is ordered to carry all schoolchildren at a reduced rate, or where the police force is ordered to protect all children on their way to and from school. Id., at 17, 67 S.Ct., at 512. The critical factors in these examples, as in the Everson reimbursement system, are that the school has no control over the expenditure of the funds and the effect of the expenditure is unrelated to the content of the education provided. Thus, the bus fare program in Everson passed constitutional muster because the school did not determine how often the pupil traveled between home and school every child must make one round trip every day and because the travel was unrelated to any aspect of the curriculum.
62
The Ohio situation is in sharp contrast. First, the nonpublic school controls the timing of the trips and, within a certain range, their frequency and destinations. Thus, the schools, rather than the children, truly are the recipients of the service and, as this Court has recognized, this fact alone may be sufficient to invalidate the program as impermissible direct aid. See Lemon v. Kurtzman, 403 U.S., at 621, 91 S.Ct., at 2115. Second, although a trip may be to a location that would be of interest to those in public schools, it is the individual teacher who makes a field trip meaningful. The experience begins with the study and discussion of the place to be visited; it continues on location with the teacher pointing out items of interest and stimulating the imagination; and it ends with a discussion of the experience. The field trips are an integral part of the educational experience, and where the teacher works within and for a sectarian institution, an unacceptable risk of fostering of religion is an inevitable byproduct. See Meek v. Pittenger, 421 U.S., at 366, 95 S.Ct., at 1763. In Lemon the Court stated:
63
"We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral." 403 U.S., at 618, 91 S.Ct., at 2114.
64
Funding of field trips, therefore, must be treated as was the funding of maps and charts in Meek v. Pittenger, supra, the funding of buildings and tuition in Committee for Public Education v. Nyquist, supra, and the funding of teacher-prepared tests in Levitt v. Committee for Public Education, supra; it must be declared an impermissible direct aid to sectarian education.
65
Moreover, the public school authorities will be unable adequately to insure secular use of the field trip funds without close supervision of the nonpublic teachers. This would create excessive entanglement:
66
"A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church." Lemon v. Kurtzman, 403 U.S., at 619, 91 S.Ct., at 2114.
67
See also Roemer v. Maryland Public Works Bd., 426 U.S., at 749, 96 S.Ct., at 2345.
68
We hold § 3317.06(L) to be unconstitutional.
IX
69
In summary, we hold constitutional those portions of the Ohio statute authorizing the State to provide nonpublic school pupils with books, standardized testing and scoring, diagnostic services, and therapeutic and remedial services. We hold unconstitutional those portions relating to instructional materials and equipment and field trip services.
70
The judgment of the District Court is therefore affirmed in part and reversed in part.
71
It is so ordered.
72
THE CHIEF JUSTICE dissents from Parts VII and VIII of the Court's opinion.
73
For the reasons stated in Mr. Justice REHNQUIST's separate opinion in Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), and Mr. Justice WHITE's dissenting opinion in Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), Mr. Justice WHITE and Mr. Justice REHNQUIST concur in the judgment with respect to textbooks, testing and scoring, and diagnostic and therapeutic services (Parts III, IV, V and VI of the opinion) and dissent from the judgment with respect to instructional materials and equipment and field trips (Parts VII and VIII of the opinion).
74
Mr. Justice BRENNAN, concurring in part and dissenting in part.
75
I join Parts I, VII, and VIII of the Court's opinion, and the reversal of the District Court's judgment insofar as that judgment upheld the constitutionality of Ohio Rev.Code Ann. §§ 3317.06(B), (C), and (L) (Supp.1976).
76
I dissent however from Parts II, III, and IV (plurality opinion) and Parts V and VI of the Court's opinion and the affirmance of the District Court's judgment insofar as it sustained the constitutionality of §§ 3317.06(A), (D), (F), (G), (H), (I), (J), and (K). The Court holds that Ohio has managed in these respects to fashion a statute that avoids an effect or entanglement condemned by the Establishment Clause. But "(t)he (First) Amendment nullifies sophisticated as well as simple-minded . . ." attempts to avoid its prohibitions, Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281 (1939), and, in any event, ingenuity in draftsmanship cannot obscure the fact that this subsidy to sectarian schools amounts to $88,800,000 (less now the sums appropriated to finance §§ 3317.06(B) and (C) which today are invalidated) just for the initial biennium. The Court nowhere evaluates this factor in determining the compatibility of the statute with the Establishment Clause, as that Clause requires, Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947). Its evaluation, even after deduction of the amount appropriated to finance §§ 3317.06(B) and (C), compels in my view the conclusion that a divisive political potential of unusual magnitude inheres in the Ohio program. This suffices without more to require the conclusion that the Ohio statute in its entirety offends the First Amendment's prohibition against laws "respecting an establishment of religion." Meek v. Pittenger, 421 U.S. 349, 373-385, 95 S.Ct. 1753, 1767-1773, 44 L.Ed.2d 217 (1975) (Brennan, J., concurring); Lemon v. Kurtzman, 403 U.S. 602, 640-642, 91 S.Ct. 2105, 2124-2125, 29 L.Ed.2d 745 (1971) (Douglas, J., concurring); Everson v. Board of Education, supra, 330 U.S., at 16, 67 S.Ct., at 511-512.
77
Mr. Justice MARSHALL, concurring in part and dissenting in part.
78
I join Parts I, V, VII, and VIII of the Court's opinion. For the reasons stated below, however, I am unable to join the remainder of the Court's opinion or its judgment upholding the constitutionality of Ohio Rev.Code Ann. §§ 3317.06(A), (G), (H), (I), (J), and (K) (Supp.1976).
79
The plurality upholds the textbook loan provision, § 3317.06(A), on the precedent of Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). Ante, at 236-238. It also recognizes, however, that there is "a tension" between Allen and the reasoning of the Court in Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975). I would resolve that tension by overruling Allen. I am now convinced that Allen is largely responsible for reducing the "high and impregnable" wall between church and state erected by the First Amendment, Everson v. Board of Education, 330 U.S. 1, 18, 67 S.Ct. 504, 513, 91 L.Ed. 711 (1947), to "a blurred, indistinct, and variable barrier," Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, at 2112, 29 L.Ed.2d 745 (1971), incapable of performing its vital functions of protecting both church and state.
80
In Allen, we upheld a textbook loan program on the assumption that the sectarian school's twin functions of religious instruction and secular education were separable. 392 U.S., at 245-248, 88 S.Ct., at 1927-1929. In Meek, we flatly rejected that assumption as a basis for allowing a State to loan secular teaching materials and equipment to such schools:
81
"The very purpose of many of those schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and belief. . . . Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole. '(T)he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined.' (Lemon v. Kurtzman, supra, 403 U.S., at 657, 91 S.Ct., at, 2133) (opinion of Brennan, J.)." 421 U.S., at 366, 95 S.Ct., at 1764.
82
Thus, although Meek upheld a textbook loan program on the strength of Allen, it left the rationale of Allen undamaged only if there is a constitutionally significant difference between a loan of pedagogical materials directly to a sectarian school and a loan of those materials to students for use in sectarianschools. As the Court convincingly demonstrates, ante, at 249-250, there is no such difference.
83
Allen has also been undercut by our recognition in Lemon that "the divisive political potential" of programs of aid to sectarian schools is one of the dangers of entanglement of church and state that the First Amendment was intended to forestall. 403 U.S., at 622-624, 91 S.Ct., at 2115-2116. We were concerned in Lemon with the danger that the need for annual appropriations of larger and larger sums would lead to "(p)olitical fragmentation and divisiveness on religious lines." Id., at 623, 91 S.Ct., at 2116. This danger exists whether the appropriations are made to fund textbooks, other instructional supplies, or, as in Lemon, teachers' salaries. As Mr. Justice BRENNAN has noted, Allen did not consider the significance of the potential for political divisiveness inherent in programs of aid to sectarian schools. Meek v. Pittenger, supra, 403 U.S., at 378, 95 S.Ct., at 1769 (concurring in part and dissenting in part).
84
It is, of course, unquestionable that textbooks are central to the educational process.1 Under the rationale of Meek, therefore, they should not be provided by the State to sectarian schools2 because "(s)ubstantial aid to the educational function of such schools . . . necessarily results in aid to the sectarian school enterprise as a whole." 421 U.S., at 366, 95 S.Ct., at 1763-1764. It is also unquestionable that the cost of textbooks is certain to be substantial. Under the rationale of Lemon, therefore, they should not be provided because of the dangers of political "divisiveness on religious lines." I would, accordingly, overrule Board of Education v. Allen and hold unconstitutional § 3317.06(A).3
85
By overruling Allen, we would free ourselves to draw a line between acceptable and unacceptable forms of aid that would be both capable of consistent application and responsive to the concerns discussed above. That line, I believe, should be placed between general welfare programs that serve children in sectarian schools because the schools happen to be a convenient place to reach the programs' target populations and programs of educational assistance.4 General welfare programs, in contrast to programs of educational assistance, do not provide "(s)ubstantial aid to the educational function" of schools,5 421 U.S., at 366, 95 S.Ct., at 1764, whether secular or sectarian, and therefore do not provide the kind of assistance to the religious mission of sectarian schools we found impermissible in Meek. Moreover, because general welfare programs do not assist the sectarian functions of denominational schools, there is no reason to expect that political disputes over the merits of those programs will divide the public along religious lines.
86
In addition to § 3317.06(A), which authorizes the textbook loan program, paragraphs (B), (C), and (L), held unconstitutional by the Court, clearly fall on the wrong side of the constitutional line I propose. Those paragraphs authorize, respectively, the loan of instructional materials and equipment and the provision of transportation for school field trips. There can be no contention that these programs provide anything other than educational assistance.
87
I also agree with the Court that the services authorized by paragraphs (D), (F), and (G) are constitutionally permissible. Those services are speech and hearing diagnosis, psychological diagnosis, and psychological and speech and hearing therapy. Like the medical, nursing, dental, and optometric services authorized by paragraph (E) and not challenged by appellants, these services promote the children's health and well-being, and have only an indirect and remote impact on their educational progress.6
88
The Court upholds paragraphs (H), (I), and (K), which it groups with paragraph (G), under the rubric of "therapeutic services." Ante, at 244-248. I cannot agree that the services authorized by these three paragraphs should be treated like the psychological services provided by paragraph (G). Paragraph (H) authorizes the provision of guidance and counseling services. The parties stipulated that the functions to be performed by the guidance and counseling personnel would include assisting students in "developing meaningful educational and career goals," and "planning school programs of study." In addition, these personnel will discuss with parents "their children's a) educational progress and needs, b) course selections, c) educational and vocational opportunities and plans, and d) study skills." The counselors will also collect and organize information for use by parents, teachers, and students. App. 45-46. This description makes clear that paragraph (H) authorizes services that would directly support the educational programs of sectarian schools. It is, therefore, in violation of the First Amendment.
89
Paragraphs (I) and (K) provide remedial services and programs for disabled children. The stipulation of the parties indicates that these paragraphs will fund specialized teachers who will both provide instruction themselves and create instructional plans for use in the students' regular classrooms. Id., at 47-48. These "therapeutic services" are clearly intended to aid the sectarian schools to improve the performance of their students in the classroom. I would not treat them as if they were programs of physical or psychological therapy.
90
Finally, the Court upholds paragraph (J), which provides standardized tests and scoring services, on the ground that these tests are clearly nonideological and that the State has an interest in assuring that the education received by sectarian school students meets minimum standards. I do not question the legitimacy of this interest, and if Ohio required students to obtain specified scores on certain tests before being promoted or graduated, I would agree that it could administer those tests to sectarian school students to ensure that its standards were being met. The record indicates, however, only that the tests "are used to measure the progress of students in secular subjects." Id., at 48. It contains no indication that the measurements are taken to assure compliance with state standards rather than for internal administrative purposes of the schools. To the extent that the testing is done to serve the purposes of the sectarian schools rather than the State, I would hold that its provision by the State violates the First Amendment.
91
Mr. Justice POWELL, concurring in part, concurring in the judgment in part, and dissenting in part.
92
Our decisions in this troubling area draw lines that often must seem arbitrary. No doubt we could achieve greater analytical tidiness if we were to accept the broadest implications of the observation in Meek v. Pittenger, 421 U.S. 349, 366, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), that "(s)ubstantial aid to the educational function of (sectarian) schools . . . necessarily results in aid to the sectarian enterprise as a whole." If we took that course, it would become impossible to sustain state aid of any kind even if the aid is wholly secular in character and is supplied to the pupils rather than the institutions. Meek itself would have to be overruled, along with Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), and even perhaps Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The persistent desire of a number of States to find proper means of helping sectarian education to survive would be doomed. This Court has not yet thought that such a harsh result is required by the Establishment Clause. Certainly few would consider it in the public interest. Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States they relieve substantially the tax burden incident to the operation of public schools. The State has, moreover, a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them.
93
It is important to keep these issues in perspective. At this point in the 20th century we are quite far removed from the dangers that prompted the Framers to include the Establishment Clause in the Bill of Rights. See Walz v. Tax Comm'n, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970). The risk of significant religious or denominational control over our democratic processes or even of deep political division along religious lines is remote, and when viewed against the positive contributions of sectarian schools, any such risk seems entirely tolerable in light of the continuing oversight of this Court. Our decisions have sought to establish principles that preserve the cherished safeguard of the Establishment Clause without resort to blind absolutism. If this endeavor means a loss of some analytical tidiness, then that too is entirely tolerable. Most of the Court's decision today follows in this tradition, and I join Parts I through VI of the opinion.
94
With respect to Part VII, I concur only in the judgment. I am not persuaded, nor did Meek hold, that all loans of secular instructional material and equipment "inescapably (have) the primary effect of providing a direct and substantial advancement of the sectarian enterprise." Ante, at 250. If that were the case, then Meek surely would have overruled Allen. Instead the Court reaffirmed Allen, thereby necessarily holding that at least some such loans of materials helpful in the educational process are permissible so long as the aid is incapable of diversion to religious uses, cf. Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), and so long as the materials are lent to the individual students or their parents and not to the sectarian institutions. Here the statute is expressly limited to materials incapable of diversion. Therefore the relevant question is whether the materials are such that they are "furnished for the use of individual students and at their request." Allen, supra, 392 U.S., at 244 n. 6, 88 S.Ct., at 1927. (emphasis added).
95
The Ohio statute includes some materials such as wall maps, charts, and other classroom paraphernalia for which the concept of a loan to individuals is a transparent fiction. A loan of these items is indistinguishable from forbidden "direct aid" to the sectarian institution itself, whoever the technical bailee. See Meek, supra, 421 U.S., at 362-366, 95 S.Ct., at 1761-1764. Since the provision makes no attempt to separate these instructional materials from others meaningfully lent to individuals, I agree with the Court that it cannot be sustained under our precedents. But I would find no constitutional defect in a properly limited provision lending to the individuals themselves only appropriate instructional materials and equipment similar to that customarily used in public schools.
96
I dissent as to Part VIII, concerning field trip transportation. The Court writes as though the statute funded the salary of the teacher who takes the students on the outing. In fact only the bus and driver are provided for the limited purpose of physical movement between the school and the secular destination of the field trip. As I find this aid indistinguishable in principle from that upheld in Everson, supra, I would sustain the District Court's judgment approving this part of the Ohio statute.
97
Mr. Justice STEVENS, concurring in part and dissenting in part.
98
The distinction between the religious and the secular is a fundamental one. To quote from Clarence Darrow's argument in the Scopes case:
99
"The realm of religion . . . is where knowledge leaves off, and where faith begins, and it never has needed the arm of the State for support, and wherever it has received it, it has harmed both the public and the religion that it would pretend to serve."1
100
The line drawn by the Establishment Clause of the First Amendment must also have a fundamental character. It should not differentiate between direct and indirect subsidies, or between instructional materials like globes and maps on the one hand and instructional materials like textbooks on the other. For that reason, rather than the three-part test described in Part II of the plurality's opinion, I would adhere to the test enunciated for the Court by Mr. Justice Black:
101
"No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711.
102
Under that test, a state subsidy of sectarian schools is invalid regardless of the form it takes. The financing of buildings, field trips, instructional materials, educational tests, and schoolbooks are all equally invalid.2 For all give aid to the school's educational mission, which at heart is religious.3 On the other hand, I am not prepared to exclude the possibility that some parts of the statute before us may be administered in a constitutional manner. The State can plainly provide public health services to children attending nonpublic schools. The diagnostic and therapeutic services described in Parts V and VI of the Court's opinion may fall into this category.4 Although I have some misgivings on this point, I am not prepared to hold this part of the statute invalid on its face.
103
This Court's efforts to improve on the Everson test have not proved successful. "Corrosive precedents"5 have left us without firm principles on which to decide these cases. As this case demonstrates, the States have been encouraged to search for new ways of achieving forbidden ends. See Committee for Public Education v. Nyquist, 413 U.S. 756, 785, 797, 93 S.Ct. 2955, 2971, 2977, 37 L.Ed.2d 948. What should be a "high and impregnable" wall between church and state,6 has been reduced to a " 'blurred, indistinct, and variable barrier,' " ante, at 236. The result has been, as Clarence Darrow predicted, harm to "both the public and the religion that (this aid) would pretend to serve."7
104
Accordingly, I dissent from Parts II, III and IV of the plurality opinion.
1
At the time Meek was decided, an appeal was pending before us from a District Court judgment holding constitutional the predecessor Ohio statute providing for aid to nonpublic schools. Wolman v. Essex, No. 73-292 (SD Ohio, July 1, 1974). This Court vacated that judgment and remanded the case for further consideration in light of Meek. 421 U.S. 982, 95 S.Ct. 1985, 44 L.Ed.2d 473 (1975).
On remand, the District Court entered a consent order, dated November 17, 1975, declaring the predecessor statute, which by then had been repealed, violative of the First and Fourteenth Amendments, but reserving decision on the constitutionality of the successor legislation. Appellants, who were plaintiffs in the original suit, them shifted their challenge to the present, successor statute.
2
On December 10, 1975, a single judge of the District Court entered a temporary restraining order enjoining the defendants from expending any funds or otherwise implementing any aspect of § 3317.06. Record, Doc. 10. On February 13, 1976, by consent of the parties, the three-judge court modified the restraining order to permit the defendants to expend funds necessary to purchase textbooks and lend them to pupils or their parents pursuant to § 3317.06(A). Record, Doc. 18.
3
We take this to be a reading of the command of § 3317.06 which, in somewhat less clear form, provides:
"Health and remedial services and instructional materials and equipment provided for the benefit of nonpublic school pupils pursuant to this section and the admission of pupils to such nonpublic schools shall be provided without distinction as to race, creed, color, or national origin of such pupils or of their teachers."
See also 417 F.Supp. 1113, 1116.
4
The state appellees do not argue in this case that any differences between the schools involved here and those in Lemon are significant. The private appellees state that "the heretofore presumed differences between elementary, secondary and higher education may need reconsideration," Brief for Appellees Grit et al. 13, but do not point out in what way any differences might be relevant. They argue instead:
"However, since church-related schools in Ohio have a religious mission and intend to retain it, we urge that the constitutionality of the Ohio program be upheld because it provides secular, neutral and nonideological assistance rather than because the schools do not fit a standard religious profile." Id., at 13-14.
The institutions aided under the Ohio statute are elementary and secondary schools. The Court said in Lemon:
"This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly." 403 U.S., at 616, 91 S.Ct., at 2113.
See also Tilton v. Richardson, 403 U.S. 672, 684-689, 91 S.Ct. 2091, 2098-2101, 29 L.Ed.2d 790 (plurality opinion); Roemer v. Maryland Public Works Bd., 426 U.S. 736, 764-765, 96 S.Ct. 2337, 2353, 49 L.Ed.2d 179 (1976).
5
Section 3317.06 explicitly provides:
"No school district shall provide services, materials, or equipment for use in religious courses, devotional exercises, religious training, or any other religious activity."
6
As was the case in Meek, the Ohio Code provides in separate sections for the loan of textbooks to public school children and to nonpublic school children. The former is covered by Ohio Rev.Code Ann. § 3329.06 (1972). The Court observed in Meek: "So long as the textbook loan program includes all schoolchildren, those in public as well as those in private schools, it is of no constitutional significance whether the general program is codified in one statute or two." 421 U.S., at 360 n. 8, 95 S.Ct., at 1761.
7
With respect to the tests the state appellees say:
"No financial aid is involved in Ohio. The tests themselves are provided." Brief for State Appellees 8.
As summarized by the private appellees:
"The new Ohio Act has nothing to do with teacher-prepared tests. It does not reimburse schools for costs incurred in testing. No money flows to the nonpublic school or parent. It simply permits the local public school districts to send the standardized achievement test to the nonpublic schools and to arrange for the grading of those tests by the commercial publishing organizations which prepare and grade standardized achievement tests." Brief for Appellees Grit et al. 53.
Further, the statute approves expenditures only for "such standardized tests and scoring services as are in use in the public schools of the state." We read this to mean that the school districts may not expend more per pupil in providing standardized testing to the nonpublic schools than they expend in providing such testing in the public schools.
8
"Yet, despite the obviously integral role of such testing in the total teaching process, no attempt is made under the statute, and no means are available, to assure that internally prepared tests are free of religious instruction.
"We cannot ignore the substantial risk that these examinations, prepared by teachers under the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church. We do not 'assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment.' Lemon v. Kurtzman, 403 U.S., at 618, 91 S.Ct. (2105), at 2114. But the potential for conflict 'inheres in the situation,' and because of that the State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination. See id., at 617, 619, 91 S.Ct. (2105), at 2113, 2114. Since the State has failed to do so here, we are left with no choice under Nyquist but to hold that Chapter 138 constitutes an impermissible aid to religion; this is so because the aid that will be devoted to secular functions is not identifiable and separable from aid to sectarian activities." Levitt, 413 U.S., at 480, 93 S.Ct., at 2819.
The New York system at issue in Levitt provided funding for both teacher-prepared and standardized testing. The Court did not reach any issue regarding the standardized testing, for it found its funding inseparable from the unconstitutional funding of teacher-prepared testing. Id., at 481, 93 S.Ct., at 2819.
9
Section 3317.06 also provides:
"No school district shall provide health or remedial services to nonpublic school pupils as authorized by this section unless such services are available to pupils attending the public schools within the district."
We understand this restriction to impose a quantitative as well as a qualitative limit on the aid to nonpublic schools for health and remedial services.
10
Section 3317.06 authorizes the local school district to expend funds:
"(E) To provide physician, nursing, dental, and optometric services to pupils attending nonpublic schools within the district. Such services shall be provided in the school attended by the nonpublic school pupil receiving the service."
11
The Court also mentioned that the auxiliary-services program had a serious potential for generating divisive and continuing political conflict over the issue of aid to religion. 421 U.S., at 372, 95 S.Ct., at 1766. The Ohio diagnostic-services program, in contrast, is unlikely to have a similar effect. First, as is discussed in the text, the Ohio program is quite unlike Meek's auxiliary-services program in that it is not so susceptible to the intrusion of sectarian overtones. Since it is not likely to be seen as involving aid to religion, any controversy it provokes will not focus on religion. in fact, it is hard to believe that religious controversy would be generated by the offer of uniform health services for all schoolchildren. Second, the diagnostic-services program is much more modest than the Meek program. Its potential for arousing political controversy is thus correspondingly reduced.
12
The sections authorize expenditures of funds:
"(G) To provide therapeutic psychological and speech and hearing services to pupils attending nonpublic schools within the district. Such services shall be provided in the public school, in public centers, or in mobile units located off of the nonpublic premises as determined by the
state department of education. If such services are provided in the public school or in public centers, transportation to and from such facilities shall be provided by the public school district in which the nonpublic school is located.
"(H) To provide guidance and counseling services to pupils attending nonpublic schools within the district. Such services shall be provided in the public school, in public centers, or in mobile units located off of the nonpublic premises as determined by the state department of education. If such services are provided in the public school or in public centers, transportation to and from such facilities shall be provided by the public school district in which the nonpublic school is located.
"(I) To provide remedial services to pupils attending nonpublic schools within the district. Such services shall be provided in the public school, in public centers, or in mobile units located off of the nonpublic premises as determined by the state department of education. If such services are provided in the public school or in public centers, transportation to and from such facilities shall be provided by the public school district in which the nonpublic school is located.
"(K) To provide programs for the deaf, blind, emotionally disturbed, crippled, and physically handicapped children attending nonpublic schools within the district. Such services shall be provided in the public school, in public centers, or in mobile units located off of the nonpublic premises as determined by the state department of education. If such services are provided in the public school, or in public centers, transportation to and from such facilities shall be provided by the public school district in which the nonpublic school is located."
The services for the public schools must be at least equal to those offered for the nonpublic schools. See n. 9, supra.
13
We believe this concession reflects appellants' understanding that the programs are not intended to influence the classroom activities in the nonpublic schools. Our Brother MARSHALL argues that certain stipulations regarding paragraph (H) announce that guidance counseling will include planning and selection of particular courses. Post, at 261. We agree that such involvement with the day-to-day curriculum of the parochial school would be impermissible. We, however, do not so read the stipulations. Rather, we understand them to recognize that a guidance counselor will engage in broad-scale, long-term planning of a student's career choices and the general areas of study that will further those choices. Our Brother MARSHALL also argues that the stipulations reflect an understanding that remedial service teachers under paragraph (I) will plan courses of study for use in the classroom. Ibid. Such a provision would pose grave constitutional questions. The stipulations, however, provide only that the remedial service teacher will keep the classroom teacher informed of the action taken. App. 49. We do not understand the stipulations to approve planning of classroom activities.
14
The purpose of the program is to aid schoolchildren, and the use of convenient local centers is a sensible way to implement the program. Although the public schools may often be used, considerations of safety, distance, and the adequacy of accommodations on occasion will justify the use of public centers or mobile units near the nonpublic school premises. Id., at 42. Certainly the Establishment Clause should not be seen as foreclosing a practical response to the logistical difficulties of extending needed and desired aid to all the children of the community.
15
The sections authorize expenditures of funds:
"(B) To purchase and to loan to pupils attending nonpublic schools within the district or to their parents upon individual request, such secular, neutral and nonideological instructional materials as are in use in the public schools within the district and which are incapable of diversion to religious use and to hire clerical personnel to administer such lending program.
"(C) To purchase and to loan to pupils attending nonpublic schools within the district or to their parents, upon individual request, such secular, neutral and nonideological instructional equipment as is in use in the public school within the district and which is incapable of diversion to religious use and to hire clerical personnel to administer such lending program."
16
Counsel for the private appellees suggested at oral argument that the material and equipment were further limited to those items "lendable to a pupil for individual use." Tr. of Oral Arg. 31. This assertion, however, appears to be contrary to the stipulation, App. 36, to the representation of the state appellees, Tr. of Oral Arg. 21, and to the understanding of the District Court, 417 F.Supp., at 1118. In any event, a meaningful distinction cannot be drawn between equipment used on a collective basis and that used individually. All materials and equipment must be used to supplement courses, App. 37, and their value derives from the support they provide to the collective educational enterprise.
17
In many respects, Nyquist was a more difficult case than the present one. First, it was at least arguable in Nyquist that the tuition grant did not end up in the hands of the religious schools since the parent was free to spend the grant money as he chose. 413 U.S., at 785-786, 93 S.Ct., at 2971-2972. No similar argument could be made here since the parties have stipulated expressly that material and equipment must be used to supplement courses. App. 37. Second, since the grant in Nyquist was limited to 50% of tuition, it was arguable that the grant should be seen as supporting only the secular part of the church-school enterprise. 413 U.S., at 787, 93 S.Ct., at 2972. An argument of that kind also could not be made here, for Meek makes clear that the material and equipment are inextricably connected with the church-related school's religious function.
18
There is, as there was in Meek, a tension between this result and Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). Allen was premised on the view that the educational content of textbooks is something that can be ascertained in advance and cannot be diverted to sectarian uses. In Nyquist the Court explained:
"In Everson, the Court found the bus fare program analogous to the provision of services such as police and fire protection, sewage disposal, highways, and sidewalks for parochial schools. 330 U.S., at 17-18, 67 S.Ct. (504), at 512-513. Such services, provided in common to all citizens, are 'so separate and so indisputably marked off from the religious function,' id., at 18, 67 S.Ct. (504), that they may fairly be viewed as reflections of a neutral posture toward religious institutions. Allen is founded upon a similar principle. The Court there repeatedly emphasized that upon the record in that case there was no indication that textbooks would be provided for anything other than purely secular courses." 413 U.S., at 781-782, 93 S.Ct., at 2970.
Board of Education v. Allen has remained law, and we now follow as a matter of stare decisis the principle that restriction of textbooks to those provided the public schools is sufficient to ensure that the books will not be used for religious purposes. In more recent cases, however, we have declined to extend that presumption of neutrality to other items in the lower school setting. See Meek, 421 U.S., at 362-366, 95 S.Ct., at 1761-1764; Levitt, 413 U.S., at 481-482, 93 S.Ct., at 2819-2820. Compare Nyquist, 413 U.S., at 774-780, 93 S.Ct., at 2966-2969, with Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). It has been argued that the Court should
extend Allen to cover all items similar to textbooks. See Meek, 421 U.S., at 385, 95 S.Ct., at 1773 (Burger, C. J., concurring in judgment in part and dissenting in part); id., at 390-391, 95 S.Ct., at 1775-1776 (Rehnquist, J., concurring in judgment in part and dissenting in part). When faced, however, with a choice between extension of the unique presumption created in Allen and continued adherence to the principles announced in our subsequent cases, we choose the latter course.
1
See Meek v. Pittenger, 421 U.S., at 384, 95 S.Ct., at 1772 (BRENNAN, J., concurring in part and dissenting in part); Board of Education v. Allen, 392 U.S., at 252, 88 S.Ct., at 1931 (Black, J., dissenting).
2
Although the texts are formally loaned to the students or their parents, the reality is that they are provided to the school. The school has the power to choose the books to be provided, since the statute defines "textbook" as " 'any book or book substitute which a pupil uses as a text or text substitute in a particular class or program in the school he regularly attends.' " Ante, at 237. The school will distribute "loan request" forms to the students, collect them, and submit them to the public authority which provides the books. The record is silent as to whether the books will be returned to the public authority or stored at the school during the summer recess.
3
Our experience with Allen bears out the warning of THE CHIEF JUSTICE:
"(I)n constitutional adjudication some steps, which when taken were thought to approach 'the verge,' have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a 'downhill thrust' easily set in motion but difficult to retard or stop." Lemon v. Kurtzman, 403 U.S. 602, 624, 91 S.Ct. 2105, 2117, 29 L.Ed.2d 745 (1971).
The tension between Allen and Meek indicates that we must soon either remove the platform or take the plunge into new realms of state assistance to sectarian institutions.
4
This is the line advocated by Mr. Justice Black, dissenting in Board of Education v. Allen, supra, 392 U.S., at 250-254, 88 S.Ct., at 1930-1932. Mr. Justice Black was the author of the Court's opinion in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), on which the opinion in Allen was based.
5
To some extent, of course, any program that improves the general well-being of a student may assist his education. The distinction is between programs that help the school educate a student and welfare programs that may have the effect of making a student more receptive to being educated.
6
Appellants argue that these programs are impermissible because the diagnostic and therapeutic personnel may be influenced to indoctrinate the pupils with whom they deal in the tenets of the sect that runs the sectarian school. I agree that if this danger were real, it would militate strongly against upholding these services. Appellants do not explain, however, why it is any more likely that a hearing test will become an occasion for indoctrination than that an eye chart will be used to deliver religious messages. (Appellants do not challenge the provision of diagnostic optometric services.) While constitutional adjudication must be sensitive to the danger of subtle abuses, it cannot be based on fear of imaginable but totally implausible evils.
1
Tr. of Oral Arg., 7, Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927) (on file with Clarence Darrow Papers, Library of Congress) (punctuation corrected).
2
In view of the acknowledged tension, ante, at 251-252, n. 18, between Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060, and Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217, the doctrine of stare decisis cannot foreclose an eventual choice between two inconsistent precedents.
3
It is the sectarian school itself, not the legislation, that is "entangled" with religion:
"The very purpose of many of those schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and belief. See Lemon v. Kurtzman, 403 U.S., at 616-617, 91 S.Ct. (2105), at 2113. Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole. '(T)he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined.' Id., at 657, 91 S.Ct. (2105) at 2133 (opinion of Brennan, J.). See generally Freund, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1688-1689." Meek v. Pittenger, supra, 421 U.S., at 366, 95 S.Ct., at 1763.
4
Like my Brother BRENNAN, ante, at 256, I am concerned by the amount of money appropriated under this statute. But since the Court has invalidated so much of the program, only a much smaller amount may still be involved.
5
Everson, 330 U.S., at 63, 67 S.Ct., at 534 (Rutledge, J., dissenting).
6
Id., at 18, 67 S.Ct., at 513.
7
In Roemer v. Maryland Public Works Board, 426 U.S. 736, 775, 96 S.Ct. 2337, 2358, 49 L.Ed.2d 179, I spoke of "the pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it." This case presents an apt illustration. To qualify for aid, sectarian schools must relinquish their religious exclusivity. As the District Court noted, the statute provides aid "to pupils attending only those nonpublic schools whose admission policies make no distinction as to . . . creed . . . of either its pupils or of its teachers." Wolman v. Essex, 417 F.Supp. 1113, 1116. Similarly, sectarian schools will be under pressure to avoid textbooks which present a religious perspective on secular subjects, so as to obtain the free textbooks provided by the State.
| 23
|
433 U.S. 186
97 S.Ct. 2569
53 L.Ed.2d 683
R. F. SHAFFER et al., Appellants,v.Arnold HEITNER, as Custodian for Mark Andrew Heitner.
No. 75-1812.
Argued Feb. 22, 1977.
Decided June 24, 1977.
Syllabus
Appellee, a nonresident of Delaware, filed a shareholder's derivative suit in a Delaware Chancery Court, naming as defendants a corporation and its subsidiary, as well as 28 present or former corporate officers or directors, alleging that the individual defendants had violated their duties to the corporation by causing it and its subsidiary to engage in actions (which occurred in Oregon) that resulted in corporate liability for substantial damages in a private antitrust suit and a large fine in a criminal contempt action. Simultaneously, appellee, pursuant to Del.Code Ann., Tit. 10, § 366 (1975), filed a motion for sequestration of the Delaware property of the individual defendants, all nonresidents of Delaware, accompanied by an affidavit identifying the property to be sequestered as stock, options, warrants, and various corporate rights of the defendants. A sequestration order was issued pursuant to which shares and options belonging to 21 defendants (appellants) were "seized" and "stop transfer" orders were placed on the corporate books. Appellants entered a special appearance to quash service of process and to vacate the sequestration order, contending that the ex parte sequestration procedure did not accord them due process; that the property seized was not capable of attachment in Delaware; and that they did not have sufficient contacts with Delaware to sustain jurisdiction of that State's courts under the rule of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. In that case the Court (after noting that the historical basis of in personam jurisdiction was a court's power over the defendant's person, making his presence within the court's territorial jurisdiction a prerequisite to its rendition of a personally binding judgment against him, Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565) held that that power was no longer the central concern and that "due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice' " (and thus the focus shifted to the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer had rested). The Court of Chancery, rejecting appellants' arguments, upheld the § 366 procedure of compelling the personal appearance of a nonresident defendant to answer and defend a suit brought against him in a court of equity, which is accomplished by the appointment of a sequestrator to seize and hold the property of the nonresident located in Delaware subject to court order, with release of the property being made upon the defendant's entry of a general appearance. The court held that the limitation on the purpose and length of time for which sequestered property is held comported with due process and that the statutory situs of the stock (under a provision making Delaware the situs of ownership of the capital stock of all corporations existing under the laws of that State) provided a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court. The Delaware Supreme Court affirmed, concluding that International Shoe raised no constitutional barrier to the sequestration procedure because "jurisdiction under § 366 remains . . . quasi in rem founded on the presence of capital stock (in Delaware), not on prior contact by defendants with this forum." Held:
1. Whether or not a State can assert jurisdiction over a nonresident must be evaluated according to the minimum-contacts standard of International Shoe Co. v. Washington, supra. Pp. 207-212.
(a) In order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising "jurisdiction over the interests of persons in the thing." The presence of property in a State may bear upon the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation, as for example, when claims to the property itself are the source of the underlying controversy between the plaintiff and defendant, where it would be unusual for the State where the property is located not to have jurisdiction. Pp. 207-208.
(b) But where, as in the instant quasi in rem action, the property now serving as the basis for state-court jurisdiction is completely unrelated to the plaintiff's cause of action, the presence of the property alone, i. e., absent other ties among the defendant, the State, and the litigation, would not support the State's jurisdiction. Pp. 208-209.
(c) Though the primary rationale for treating the presence of property alone as a basis for jurisdiction is to prevent a wrongdoer from avoiding payment of his obligations by removal of his assets to a place where he is not subject to an in personam suit, that is an insufficient justification for recognizing jurisdiction without regard to whether the property is in the State for that purpose. Moreover, the availability of attachment procedures and the protection of the Full Faith and Credit Clause, also militate against that rationale. Pp. 209-210.
(d) The fairness standard of International Shoe can be easily applied in the vast majority of cases. P. 211.
(e) Though jurisdiction based solely on the presence of property in a State has had a long history, "traditional notions of fair play and substantial justice" can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that do not comport with the basic values of our constitutional heritage. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 340, 89 S.Ct. 1820, 1822, 23 L.Ed.2d 349; Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782. Pp. 211-212.
2. Delaware's assertion of jurisdiction over appellants, based solely as it is on the statutory presence of appellants' property in Delaware, violates the Due Process Clause, which "does not contemplate that a state may make binding a judgment . . . against an individual or corporate defendant with which the state has no contacts, ties, or relations." International Shoe, supra, 326 U.S., at 319, 66 S.Ct., at 160. Pp. 213-217.
(a) Appellants' holdings in the corporation, which are not the subject matter of this litigation and are unrelated to the underlying cause of action, do not provide contacts with Delaware sufficient to support jurisdiction of that State's courts over appellants. P. 213.
(b) Nor is Delaware state-court jurisdiction supported by that State's interest in supervising the management of a Delaware corporation and defining the obligations of its officers and directors, since Delaware bases jurisdiction, not on appellants' status as corporate fiduciaries, but on the presence of their property in the State. Moreover, sequestration has been available in any suit against a nonresident whether against corporate fiduciaries or not. Pp. 213-215.
(c) Though it may be appropriate for Delaware law to govern the obligations of appellants to the corporation and stockholders, this does not mean that appellants have "purposefully avail(ed themselves) of the privilege of conducting activities within the forum State," Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283. Appellants, who were not required to acquire interests in the corporation in order to hold their positions, did not by acquiring those interests surrender their right to be brought to judgment in the States in which they had "minimum contacts." Pp. 215-216.
Del.Supr., 361 A.2d 225, reversed.
John R. Reese, San Francisco, Cal., for appellants.
Michael F. Maschio, New York City, for appellee.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The controversy in this case concerns the constitutionality of a Delaware statute that allows a court of that State to take jurisdiction of a lawsuit by sequestering any property of the defendant that happens to be located in Delaware. Appellants contend that the sequestration statute as applied in this case violates the Due Process Clause of the Fourteenth Amendment both because it permits the state courts to exercise jurisdiction despite the absence of sufficient contacts among the defendants, the litigation, and the State of Delaware and because it authorizes the deprivation of defendants' property without providing adequate procedural safeguards. We find it necessary to consider only the first of these contentions.
2
* Appellee Heitner, a nonresident of Delaware, is the owner of one share of stock in the Greyhound Corp., a business incorporated under the laws of Delaware with its principal place of business in Phoenix, Ariz. On May 22, 1974, he filed a shareholder's derivative suit in the Court of Chancery for New Castle County, Del., in which he named as defendants Greyhound, its wholly owned subsidiary Greyhound Lines, Inc.,1 and 28 present or former officers or directors of one or both of the corporations. In essence, Heitner alleged that the individual defendants had violated their duties to Greyhound by causing it and its subsidiary to engage in actions that resulted in the corporations being held liable for substantial damages in a private antitrust suit2 and a large fine in a criminal contempt action.3 The activities which led to these penalties took place in Oregon.
3
Simultaneously with his complaint, Heitner filed a motion for an order of sequestration of the Delaware property of the individual defendants pursuant to Del.Code Ann., Tit. 10, § 366 (1975).4 This motion was accompanied by a supporting affidavit of counsel which stated that the individual defendants were nonresidents of Delaware. The affidavit identified the property to be sequestered as
4
"common stock, 3% Second Cumulative Preferenced Stock and stock unit credits of the Defendant Greyhound Corporation, a Delaware corporation, as well as all options and all warrants to purchase said stock issued to said individual Defendants and all contractural (sic ) obligations, all rights, debts or credits due or accrued to or for the benefit of any of the said Defendants under any type of written agreement, contract or other legal instrument of any kind whatever between any of the individual Defendants and said corporation."
5
The requested sequestration order was signed the day the motion was filed.5 Pursuant to that order, the sequestrator6 "seized" approximately 82,000 shares of Greyhound common stock belonging to 19 of the defendants,7 and options belonging to another 2 defendants.8 These seizures were accomplished by placing "stop transfer" orders or their equivalents on the books of the Greyhound Corp. So far as the record shows, none of the certificates representing the seized property was physically present in Delaware. The stock was considered to be in Delaware, and so subject to seizure, by virtue of Del.Code Ann., Tit. 8, § 169 (1975), which makes Delaware the situs of ownership of all stock in Delaware corporations.9
6
All 28 defendants were notified of the initiation of the suit by certified mail directed to their last known addresses and by publication in a New Castle County newspaper. The 21 defendants whose property was seized (hereafter referred to as appellants) responded by entering a special appearance for the purpose of moving to quash service of process and to vacate the sequestration order. They contended that the ex parte sequestration procedure did not accord them due process of law and that the property seized was not capable of attachment in Delaware. In addition, appellants asserted that under the rule of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), they did not have sufficient contacts with Delaware to sustain the jurisdiction of that State's courts.
7
The Court of Chancery rejected these arguments in a letter opinion which emphasized the purpose of the Delaware sequestration procedure:
8
"The primary purpose of 'sequestration' as authorized by 10 Del.C. § 366 is not to secure possession of property pending a trial between resident debtors and creditors on the issue of who has the right to retain it. On the contrary, as here employed, 'sequestration' is a process used to compel the personal appearance of a nonresident defendant to answer and defend a suit brought against him in a court of equity. Sands v. Lefcourt Realty Corp., Del.Supr., 35 Del.Ch. 340, 117 A.2d 365 (1955). It is accomplished by the appointment of a sequestrator by this Court to seize and hold property of the nonresident located in this State subject to further Court order. If the defendant enters a general appearance, the sequestered property is routinely released, unless the plaintiff makes special application to continue its seizure, in which event the plaintiff has the burden of proof and persuasion." App. 75-76.
9
This limitation on the purpose and length of time for which sequestered property is held, the court concluded, rendered inapplicable the due process requirements enunciated in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); and Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). App. 75-76, 80, 83-85. The court also found no state-law or federal constitutional barrier to the sequestrator's reliance on Del.Code Ann., Tit. 8, § 169 (1975). App. 76-79. Finally, the court held that the statutory Delaware situs of the stock provided a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court. Id., at 85-87.
10
On appeal, the Delaware Supreme Court affirmed the judgment of the Court of Chancery. Greyhound Corp. v. Heitner, 361 A.2d 225 (1976). Most of the Supreme Court's opinion was devoted to rejecting appellants' contention that the sequestration procedure is inconsistent with the due process analysis developed in the Sniadach line of cases. The court based its rejection of that argument in part on its agreement with the Court of Chancery that the purpose of the sequestration procedure is to compel the appearance of the defendant, a purpose not involved in the Sniadach cases. The court also relied on what it considered the ancient origins of the sequestration procedure and approval of that procedure in the opinions of this Court,10 Delaware's interest in asserting jurisdiction to adjudicate claims of mismanagement of a Delaware corporation, and the safeguards for defendants that it found in the Delaware statute. 361 A.2d, at 230-236.
11
Appellants' claim that the Delaware courts did not have jurisdiction to adjudicate this action received much more cursory treatment. The court's analysis of the jurisdictional issue is contained in two paragraphs:
12
"There are significant constitutional questions at issue here but we say at once that we do not deem the rule of International Shoe to be one of them. . . . The reason of course, is that jurisdiction under § 366 remains . . . quasi in rem founded on the presence of capital stock here, not on prior contact by defendants with this forum. Under 8 Del.C. § 169 the 'situs of the ownership of the capital stock of all corporations existing under the laws of this State . . . (is) in this State,' and that provides the initial basis for jurisdiction. Delaware may constitutionally establish situs of such shares here, . . . it has done so and the presence thereof provides the foundation for § 366 in this case. . . . On this issue we agree with the analysis made and the conclusion reached by Judge Stapleton in U. S. Industries, Inc. v. Gregg, D.Del., 348 F.Supp. 1004 (1972).11
13
"We hold that seizure of the Greyhound shares is not invalid because plaintiff has failed to meet the prior contacts tests of International Shoe." Id., at 229.
14
We noted probable jurisdiction. 429 U.S. 813, 97 S.Ct. 52, 50 L.Ed.2d 72.12 We reverse.
II
15
The Delaware courts rejected appellants' jurisdictional challenge by noting that this suit was brought as a quasi in rem proceeding. Since quasi in rem jurisdiction is traditionally based on attachment or seizure of property present in the jurisdiction, not on contacts between the defendant and the State, the courts considered appellants' claimed lack of contacts with Delaware to be unimportant. This categorical analysis assumes the continued soundness of the conceptual structure founded on the century-old case of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878).
16
Pennoyer was an ejectment action brought in federal court under the diversity jurisdiction. Pennoyer, the defendant in that action, held the land under a deed purchased in a sheriff's sale conducted to realize on a judgment for attorney's fees obtained against Neff in a previous action by one Mitchell. At the time of Mitchell's suit in an Oregon State court, Neff was a nonresident of Oregon. An Oregon statute allowed service by publication on nonresidents who had property in the State,13 and Mitchell had used that procedure to bring Neff before the court. The United States Circuit Court for the District of Oregon, in which Neff brought his ejectment action, refused to recognize the validity of the judgment against Neff in Mitchell's suit, and accordingly awarded the land to Neff.14 This Court affirmed.
17
Mr. Justice Field's opinion for the Court focused on the territorial limits of the States' judicial powers. Although recognizing that the States are not truly independent sovereigns, Mr. Justice Field found that their jurisdiction was defined by the "principles of public law" that regulate the relationships among independent nations. The first of those principles was "that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory." The second was "that no State can exercise direct jurisdiction and authority over persons or property without its territory." Id., at 722. Thus, "in virtue of the State's jurisdiction over the property of the non-resident situated within its limits," the state courts "can inquire into that non-resident's obligations to its own citizens . . . to the extent necessary to control the disposition of the property." Id., at 723. The Court recognized that if the conclusions of that inquiry were adverse to the non-resident property owner, his interest in the property would be affected. Ibid. Similarly, if the defendant consented to the jurisdiction of the state courts or was personally served within the State, a judgment could affect his interest in property outside the State. But any attempt "directly" to assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State's power. A judgment resulting from such an attempt, Mr. Justice Field concluded, was not only unenforceable in other States,15 but was also void in the rendering State because it had been obtained in violation of the Due Process Clause of the Fourteenth Amendment. Id., at 732-733. See also, e. g., Freeman v. Alderson, 119 U.S. 185, 187-188, 7 S.Ct. 165, 166-167, 30 L.Ed. 372 (1886).
18
This analysis led to the conclusion that Mitchell's judgment against Neff could not be validly based on the State's power over persons within its borders, because Neff had not been personally served in Oregon, nor had he consensually appeared before the Oregon court. The Court reasoned that even if Neff had received personal notice of the action, service of process outside the State would have been ineffectual since the State's power was limited by its territorial boundaries. Moreover, the Court held, the action could not be sustained on the basis of the State's power over property within its borders because that property had not been brought before the court by attachment or any other procedure prior to judgment.16 Since the judgment which authorized the sheriff's sale was therefore invalid, the sale transferred no title. Neff regained his land.
19
From our perspective, the importance of Pennoyer is not its result, but the fact that its principles and corollaries derived from them became the basic elements of the constitutional doctrine governing state-court jurisdiction. See, e. g., Hazard, A General Theory of State-Court Jurisdiction, 1965 Sup.Ct.Rev. 241 (hereafter Hazard). As we have noted, under Pennoyer state authority to adjudicate was based on the jurisdiction's power over either persons or property. This fundamental concept is embodied in the very vocabulary which we use to describe judgments. If a court's jurisdiction is based on its authority over the defendant's person, the action and judgment are denominated "in personam" and can impose a personal obligation on the defendant in favor of the plaintiff. If jurisdiction is based on the court's power over property within its territory, the action is called "in rem" or "quasi in rem." The effect of a judgment in such a case is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner, since he is not before the court.17 In Pennoyer's terms, the owner is affected only "indirectly" by an in rem judgment adverse to his interest in the property subject to the court's disposition.
20
By concluding that "(t)he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established," 95 U.S., at 720, Pennoyer sharply limited the availability of in personam jurisdiction over defendants not resident in the forum State. If a nonresident defendant could not be found in a State, he could not be sued there. On the other hand, since the State in which property was located was considered to have exclusive sovereignty over that property, in rem actions could proceed regardless of the owner's location. Indeed, since a State's process could not reach beyond its borders, this Court held after Pennoyer that due process did not require any effort to give a property owner personal notice that his property was involved in an in rem proceeding. See, e. g., Ballard v. Hunter, 204 U.S. 241, 27 S.Ct. 261, 51 L.Ed. 461 (1907); Arndt v. Griggs, 134 U.S. 316, 10 S.Ct. 557, 33 L.Ed. 918 (1890); Huling v. Kaw Valley R. Co., 130 U.S. 559, 9 S.Ct. 603, 32 L.Ed. 1045 (1889).
21
The Pennoyer rules generally favored nonresident defendants by making them harder to sue. This advantage was reduced, however, by the ability of a resident plaintiff to satisfy a claim against a nonresident defendant by bringing into court any property of the defendant located in the plaintiff's State. See, e. g., Zammit, Quasi-In-Rem Jurisdiction: Outmoded and Unconstitutional?, 49 St. John's L.Rev. 668, 670 (1975). For example, in the well-known case of Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023 (1905), Epstein, a resident of Maryland, had a claim against Balk, a resident of North Carolina. Harris, another North Carolina resident, owed money to Balk. When Harris happened to visit Maryland, Epstein garnished his debt to Balk. Harris did not contest the debt to Balk and paid it to Epstein's North Carolina attorney. When Balk later sued Harris in North Carolina, this Court held that the Full Faith and Credit Clause, U.S. Const., Art. IV, § 1, required that Harris' payment to Epstein be treated as a discharge of his debt to Balk. This Court reasoned that the debt Harris owed Balk was an intangible form of property belonging to Balk, and that the location of that property traveled with the debtor. By obtaining personal jurisdiction over Harris, Epstein had "arrested" his debt to Balk, 198 U.S., at 223, 25 S.Ct., at 627, and brought it into the Maryland court. Under the structure established by Pennoyer, Epstein was then entitled to proceed against that debt to vindicate his claim against Balk, even though Balk himself was not subject to the jurisdiction of a Maryland tribunal.18 See also, e. g., Louisville & N. R. Co. v. Deer, 200 U.S. 176, 26 S.Ct. 207, 50 L.Ed. 426 (1906); Steele v. G. D. Searle & Co., 483 F.2d 339 (CA5 1973), cert. denied, 415 U.S. 958, 94 S.Ct. 1486, 39 L.Ed.2d 572 (1974).
22
Pennoyer itself recognized that its rigid categories, even as blurred by the kind of action typified by Harris, could not accommodate some necessary litigation. Accordingly, Mr. Justice Field's opinion carefully noted that cases involving the personal status of the plaintiff, such as divorce actions, could be adjudicated in the plaintiff's home State even though the defendant could not be served within that State. 95 U.S., at 733-735. Similarly, the opinion approved the practice of considering a foreign corporation doing business in a State to have consented to being sued in that State. Id., at 735-736; see Lafayette Ins. Co. v. French, 18 How. 404, 15 L.Ed. 451 (1856). This basis for in personam jurisdiction over foreign corporations was later supplemented by the doctrine that a corporation doing business in a State could be deemed "present" in the State, and so subject to service of process under the rule of Pennoyer. See, e. g., International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479 (1914); Philadelphia & Reading R. Co. v. McKibbin, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710 (1917). See generally Note, Developments in the Law, State-Court Jurisdiction, 73 Harv.L.Rev. 909, 919-923 (1960) (hereafter Developments).
23
The advent of automobiles, with the concomitant increase in the incidence of individuals causing injury in States where they were not subject to in personam actions under Pennoyer, required further moderation of the territorial limits on jurisdictional power. This modification, like the accommodation to the realities of interstate corporate activities, was accomplished by use of a legal fiction that left the conceptual structure established in Pennoyer theoretically unaltered. Cf. Olberding v. Illinois Central R. Co., 346 U.S. 338, 340-341, 74 S.Ct. 83, 85-86, 98 L.Ed. 39 (1953). The fiction used was that the out-of-state motorist, who it was assumed could be excluded altogether from the State's highways, had by using those highways appointed a designated state official as his agent to accept process. See Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). Since the motorist's "agent" could be personally served within the State, the state courts could obtain in personam jurisdiction over the nonresident driver.
24
The motorists' consent theory was easy to administer since it required only a finding that the out-of-state driver had used the State's roads. By contrast, both the fictions of implied consent to service on the part of a foreign corporation and of corporate presence required a finding that the corporation was "doing business" in the forum State. Defining the criteria for making that finding and deciding whether they were met absorbed much judicial energy. See, e. g., International Shoe Co. v. Washington,, 326 U.S., at 317-319, 66 S.Ct., at 158-160. While the essentially quantitative tests which emerged from these cases purported simply to identify circumstances under which presence or consent could be attributed to the corporation, it became clear that they were in fact attempting to ascertain "what dealings make it just to subject a foreign corporation to local suit". Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141 (CA2 1930) (L. Hand, J.). In International Shoe, we acknowledged that fact.
25
The question in International Shoe was whether the corporation was subject to the judicial and taxing jurisdiction of Washington. Mr. Chief Justice Stone's opinion for the Court began its analysis of that question by noting that the historical basis of in personam jurisdiction was a court's power over the defendant's person. That power, however, was no longer the central concern:
26
"But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278." 326 U.S., at 316, 66 S.Ct., at 158.
27
Thus, the inquiry into the State's jurisdiction over a foreign corporation appropriately focused not on whether the corporation was "present" but on whether there have been
28
"such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there." Id., at 317, 66 S.Ct., at 158.
29
Mechanical or quantitative evaluations of the defendant's activities in the forum could not resolve the question of reasonableness:
30
"Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations." Id., at 319, 66 S.Ct., at 160.19
31
Thus, the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction.20 The immediate effect of this departure from Pennoyer's conceptual apparatus was to increase the ability of the state courts to obtain personal jurisdiction over nonresident defendants. See, e. g., Green, Jurisdictional Reform in California, 21 Hastings L.J. 1219, 1231-1233 (1970); Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U.Ill.L.F. 533; Developments 1000-1008.
32
No equally dramatic change has occurred in the law governing jurisdiction in rem. There have, however, been intimations that the collapse of the in personam wing of Pennoyer has not left that decision unweakened as a foundation for in rem jurisdiction. Well-reasoned lower court opinions have questioned the proposition that the presence of property in a State gives that State jurisdiction to adjudicate rights to the property regardless of the relationship of the underlying dispute and the property owner to the forum. See, e. g., U. S. Industries, Inc. v. Gregg, 540 F.2d 142 (CA3 1976), cert. pending, No. 76-359; Jonnet v. Dollar Savings Bank, 530 F.2d 1123, 1130-1143 (CA3 1976) (Gibbons, J., concurring); Camire v. Scieszka, 116 N.H. 281, 358 A.2d 397 (1976); Bekins v. Huish, 1 Ariz.App. 258, 401 P.2d 743 (1965); Atkinson v. Superior Court, 49 Cal.2d 338, 316 P.2d 960 (1957), appeal dismissed and cert. denied sub nom. Columbia Broadcasting System v. Atkinson, 357 U.S. 569, 78 S.Ct. 1381, 2 L.Ed.2d 1546 (1958). The overwhelming majority of commentators have also rejected Pennoyer's premise that a proceeding "against" property is not a proceeding against the owners of that property. Accordingly, they urge that the "traditional notions of fair play and substantial justice" that govern a State's power to adjudicate in personam should also govern its power to adjudicate personal rights to property located in the State. See, e. g., 204 Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.L.Rev. 1121 (1966) (hereafter Von Mehren & Trautman); Traynor, Is This Conflict Really Necessary?, 37 Texas L.Rev. 657 (1959) (hereafter Traynor); Ehrenzweig, The Transient Rule of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L.J. 289 (1956); Developments; Hazard.
33
Although this Court has not addressed this argument directly, we have held that property cannot be subjected to a court's judgment unless reasonable and appropriate efforts have been made to give the property owners actual notice of the action. Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962); Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). This conclusion recognizes, contrary to Pennoyer, that an adverse judgment in rem directly affects the property owner by divesting him of his rights in the property before the court. Schroeder v. City of New York, supra, 371 U.S., at 213, 83 S.Ct., at 282; cf. Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960) (separate actions against barge and barge owner are one "civil action" for purpose of transfer under 28 U.S.C. § 1404(a)). Moreover, in Mullane we hold that Fourteenth Amendment rights cannot depend on the classification of an action as in rem or in personam, since that is
34
"a classification for which the standards are so elusive and confused generally and which, being primarily for state courts to define, may and do vary from state to state." 339 U.S., at 312, 70 S.Ct., at 656.
35
It is clear, therefore, that the law of state-court jurisdiction no longer stands securely on the foundation established in Pennoyer.21 We think that the time is ripe to consider whether the standard of fairness and substantial justice set forth in International Shoe should be held to govern actions in rem as well as in personam.
III
36
The case for applying to jurisdiction in rem the same test of "fair play and substantial justice" as governs assertions of jurisdiction in personam is simple and straightforward. It is premised on recognition that "(t)he phrase, 'judicial jurisdiction over a thing', is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing." Restatement (Second) of Conflict of Laws § 56, Introductory Note (1971) (hereafter Restatement).22 This recognition leads to the conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising "jurisdiction over the interests of persons in a thing."23 The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum-contacts standard elucidated in International Shoe.
37
This argument, of course, does not ignore the fact that the presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant,24 it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant's claim to property located in the State would normally25 indicate that he expected to benefit from the State's protection of his interest.26 The State's strong interests in assuring the marketability of property within its borders27 and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State.28 The presence of property may also favor jurisdiction in cases such as suits for injury suffered on the land of an absentee owner, where the defendant's ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that ownership.29
38
It appears, therefore, that jurisdiction over many types of actions which now are or might be brought in rem would not be affected by a holding that any assertion of state-court jurisdiction must satisfy the International Shoe standard.30 For the type of quasi in rem action typified by Harris v. Balk and the present case, however, accepting the proposed analysis would result in significant change. These are cases where the property which now serves as the basis for state-court jurisdiction is completely unrelated to the plaintiff's cause of action. Thus, although the presence of the defendant's property in a State might suggest the existence of other ties among the defendant, the State, and the litigation, the presence of the property alone would not support the State's jurisdiction. If those other ties did not exist, cases over which the State is now thought to have jurisdiction could not be brought in that forum.
39
Since acceptance of the International Shoe test would most affect this class of cases, we examine the arguments against adopting that standard as they relate to this category of litigation.31 Before doing so, however, we note that this type of case also presents the clearest illustration of the argument in favor of assessing assertions of jurisdiction by a single standard. For in cases such as Harris and this one, the only role played by the property is to provide the basis for bringing the defendant into court.32 Indeed, the express purpose of the Delaware sequestration procedure is to compel the defendant to enter a personal appearance.33 In such cases, if a direct assertion of personal jurisdiction over the defendant would violate the Constitution, it would seem that an indirect assertion of that jurisdiction should be equally impermissible.
40
The primary rationale for treating the presence of property as a sufficient basis for jurisdiction to adjudicate claims over which the State would not have jurisdiction if International Shoe applied is that a wrongdoer
41
"should not be able to avoid payment of his obligations by the expedient of removing his assets to a place where he is not subject to an in personam suit." Restatement § 66, Comment a.
42
Accord, Developments 955. This justification, however, does not explain why jurisdiction should be recognized without regard to whether the property is present in the State because of an effort to avoid the owner's obligations. Nor does it support jurisdiction to adjudicate the underlying claim. At most, it suggests that a State in which property is located should have jurisdiction to attach that property, by use of proper procedures,34 as security for a judgment being sought in a forum where the litigation can be maintained consistently with International Shoe. See, e. g., Von Mehren & Trautman 1178; Hazard 284-285; Beale, supra, n. 18, at 123-124. Moreover, we know of nothing to justify the assumption that a debtor can avoid paying his obligations by removing his property to a State in which his creditor cannot obtain personal jurisdiction over him.35 The Full Faith and Credit Clause, after all, makes the valid in personam judgment of one State enforceable in all other States.36
43
It might also be suggested that allowing in rem jurisdiction avoids the uncertainty inherent in the International Shoe standard and assures a plaintiff of a forum.37 See Folk & Moyer, supra, n. 10, at 749, 767. We believe, however, that the fairness standard of International Shoe can be easily applied in the vast majority of cases. Moreover, when the existence of jurisdiction in a particular forum under International Shoe is unclear, the cost of simplifying the litigation by avoiding the jurisdictional question may be the sacrifice of "fair play and substantial justice." That cost is too high.
44
We are left, then, to consider the significance of the long history of jurisdiction based solely on the presence of property in a State. Although the theory that territorial power is both essential to and sufficient for jurisdiction has been undermined, we have never held that the presence of property in a State does not automatically confer jurisdiction over the owner's interest in that property.38 This history must be considered as supporting the proposition that jurisdiction based solely on the presence of property satisfies the demands of due process, cf. Ownbey v. Morgan, 256 U.S. 94, 111, 41 S.Ct. 433, 438, 65 L.Ed. 837 (1921), but it is not decisive. "(T) raditional notions of fair play and substantial justice" can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage. Cf. Sniadach v. Family Finance Corp., 395 U.S., at 340, 89 S.Ct., at 1822; Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949). The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state-court jurisdiction that is fundamentally unfair to the defendant.
45
We therefore conclude that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.39
IV
46
The Delaware courts based their assertion of jurisdiction in this case solely on the statutory presence of appellants' property in Delaware. Yet that property is not the subject matter of this litigation, nor is the underlying cause of action related to the property. Appellants' holdings in Greyhound do not, therefore, provide contacts with Delaware sufficient to support the jurisdiction of that State's courts over appellants. If it exists, that jurisdiction must have some other foundation.40
47
Appellee Heitner did not allege and does not now claim that appellants have ever set foot in Delaware. Nor does he identify any act related to his cause of action as having taken place in Delaware. Nevertheless, he contends that appellants' positions as directors and officers of a corporation chartered in Delaware41 provide sufficient "contacts, ties, or relations", International Shoe Co. v. Washington, 326 U.S., at 319, 66 S.Ct., at 160, with that State to give its courts jurisdiction over appellants in this stockholder's derivative action. This argument is based primarily on what Heitner asserts to be the strong interest of Delaware in supervising the management of a Delaware corporation. That interest is said to derive from the role of Delaware law in establishing the corporation and defining the obligations owed to it by its officers and directors. In order to protect this interest, appellee concludes, Delaware's courts must have jurisdiction over corporate fiduciaries such as appellants.
48
This argument is undercut by the failure of the Delaware Legislature to assert the state interest appellee finds so compelling. Delaware law bases jurisdiction, not on appellants' status as corporate fiduciaries, but rather on the presence of their property in the State. Although the sequestration procedure used here may be most frequently used in derivative suits against officers and directors, Hughes Tool Co. v. Fawcett Publications, Inc., 290 A.2d 693, 695 (Del.Ch.1972), the authorizing statute evinces no specific concern with such actions. Sequestration can be used in any suit against a nonresident,42 see, e. g., U. S. Industries, Inc. v. Gregg, 540 F.2d 142 (CA3 1976), cert. pending, No. 76-359 (breach of contract); Hughes Tool Co. v. Fawcett Publications, Inc., supra (same), and reaches corporate fiduciaries only if they happen to own interests in a Delaware corporation, or other property in the State. But as Heitner's failure to secure jurisdiction over seven of the defendants named in his complaint demonstrates, there is no necessary relationship between holding a position as a corporate fiduciary and owning stock or other interests in the corporation.43 If Delaware perceived its interest in securing jurisdiction over corporate fiduciaries to be as great as Heitner suggests, we would expect it to have enacted a statute more clearly designed to protect that interest.
49
Moreover, even if Heitner's assessment of the importance of Delaware's interest is accepted, his argument fails to demonstrate that Delaware is a fair forum for this litigation. The interest appellee has identified may support the application of Delaware law to resolve any controversy over appellants' actions in their capacities as officers and directors.44 But we have rejected the argument that if a State's law can properly be applied to a dispute, its courts necessarily have jurisdiction over the parties to that dispute.
50
"(The State) does not acquire . . . jurisdiction by being the 'center of gravity' of the controversy, or the most convenient location for litigation. The issue is personal jurisdiction, not choice of law. It is resolved in this case by considering the acts of the (appellants)." Hanson v. Denckla, 357 U.S. 235, 254, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958).45
51
Appellee suggests that by accepting positions as officers or directors of a Delaware corporation, appellants performed the acts required by Hanson v. Denckla. He notes that Delaware law provides substantial benefits to corporate officers and directors,46 and that these benefits were at least in part the incentive for appellants to assume their positions. It is, he says, "only fair and just" to require appellants, in return for these benefits, to respond in the State of Delaware when they are accused of misusing their power. Brief for Appellee 15.
52
But like Heitner's first argument, this line of reasoning establishes only that it is appropriate for Delaware law to govern the obligations of appellants to Greyhound and its stockholders. It does not demonstrate that appellants have "purposefully avail(ed themselves) of the privilege of conducting activities within the forum State," Hanson v. Denckla, supra, at 253, 78 S.Ct., at 1240, in a way that would justify bringing them before a Delaware tribunal. Appellants have simply had nothing to do with the State of Delaware. Moreover, appellants had no reason to expect to be haled before a Delaware court. Delaware, unlike some States,47 has not enacted a statute that treats acceptance of a directorship as consent to jurisdiction in the State. And "(i)t strains reason . . . to suggest that anyone buying securities in a corporation formed in Delaware 'impliedly consents' to subject himself to Delaware's . . . jurisdiction on any cause of action." Folk & Moyer, supra, n.10, at 785. Appellants, who were not required to acquire interests in Greyhound in order to hold their positions, did not by acquiring those interests surrender their right to be brought to judgment only in States with which they had had "minimum contacts."
The Due Process Clause
53
"does not contemplate that a state may make binding a judgment . . . against an individual or corporate defendant with which the state has no contacts, ties, or relations." International Shoe Co. v. Washington, 326 U.S., at 319, 66 S.Ct., at 160.
54
Delaware's assertion of jurisdiction over appellants in this case is inconsistent with that constitutional limitation on state power. The judgment of the Delaware Supreme Court must, therefore, be reversed.
55
It is so ordered.
56
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
57
Mr. Justice POWELL, concurring.
58
I agree that the principles of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), should be extended to govern assertions of in rem as well as in personam jurisdiction in a state court. I also agree that neither the statutory presence of appellants' stock in Delaware nor their positions as directors and officers of a Delaware corporation can provide sufficient contacts to support the Delaware courts' assertion of jurisdiction in this case.
59
I would explicitly reserve judgment, however, on whether the ownership of some forms of property whose situs is indisputably and permanently located within a State may, without more, provide the contacts necessary to subject a defendant to jurisdiction within the State to the extent of the value of the property. In the case of real property, in particular, preservation of the common-law concept of quasi in rem jurisdiction arguably would avoid the uncertainty of the general International Shoe standard without significant cost to " 'traditional notions of fair play and substantial justice.' " Id., at 316, 66 S.Ct., at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940).
60
Subject to the foregoing reservation, I join the opinion of the Court.
61
Mr. Justice STEVENS, concurring in the judgment.
62
The Due Process Clause affords protection against "judgments without notice." International Shoe Co. v. Washington, 326 U.S. 310, 324, 66 S.Ct. 154, 162, 90 L.Ed. 95 (opinion of Black, J.). Throughout our history the acceptable exercise of in rem and quasi in rem jurisdiction has included a procedure giving reasonable assurance that actual notice of the particular claim will be conveyed to the defendant.* Thus, publication, notice by registered mail, or extraterritorial personal service has been an essential ingredient of any procedure that serves as a substitute for personal service within the jurisdiction.
63
The requirement of fair notice also, I believe, includes fair warning that a particular activity may subject a person to the jurisdiction of a foreign sovereign. If I visit another State, or acquire real estate or open a bank account in it, I knowingly assume some risk that the State will exercise its power over my property or my person while there. My contact with the State, though minimal, gives rise to predictable risks.
64
Perhaps the same consequences should flow from the purchase of stock of a corporation organized under the laws of a foreign nation, because to some limited extent one's property and affairs then become subject to the laws of the nation of domicile of the corporation. As a matter of international law, that suggestion might be acceptable because a foreign investment is sufficiently unusual to make it appropriate to require the investor to study the ramifications of his decision. But a purchase of securities in the domestic market is an entirely different matter.
65
One who purchases shares of stock on the open market can hardly be expected to know that he has thereby become subject to suit in a forum remote from his residence and unrelated to the transaction. As a practical matter, the Delaware sequestration statute creates an unacceptable risk of judgment without notice. Unlike the 49 other States, Delaware treats the place of incorporation as the situs of the stock, even though both the owner and the custodian of the shares are elsewhere. Moreover, Delaware denies the defendant the opportunity to defend the merits of the suit unless he subjects himself to the unlimited jurisdiction of the court. Thus, it coerces a defendant either to submit to personal jurisdiction in a forum which could not otherwise obtain such jurisdiction or to lose the securities which have been attached. If its procedure were upheld, Delaware would, in effect, impose a duty of inquiry on every purchaser of securities in the national market. For unless the purchaser ascertains both the State of incorporation of the company whose shares he is buying, and also the idiosyncrasies of its law, he may be assuming an unknown risk of litigation. I therefore agree with the Court that on the record before us no adequate basis for jurisdiction exists and that the Delaware statute is unconstitutional on its face.
66
How the Court's opinion may be applied in other contexts is not entirely clear to me. I agree with Mr. Justice POWELL that it should not be read to invalidate quasi in rem jurisdiction where real estate is involved. I would also not read it as invalidating other long-accepted methods of acquiring jurisdiction over persons with adequate notice of both the particular controversy and the fact that their local activities might subject them to suit. My uncertainty as to the reach of the opinion, and my fear that it purports to decide a great deal more than is necessary to dispose of this case, persuade me merely to concur in the judgment.
67
Mr. Justice BRENNAN, concurring in part and dissenting in part.
68
I join Parts I-III of the Court's opinion. I fully agree that the minimum-contacts analysis developed in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), represents a far more sensible construct for the exercise of state-court jurisdiction than the patchwork of legal and factual fictions that has been generated from the decision in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878). It is precisely because the inquiry into minimum contacts is now of such overriding importance, however, that I must respectfully dissent from Part IV of the Court's opinion.
69
* The primary teaching of Parts I-III of today's decision is that a State, in seeking to assert jurisdiction over a person located outside its borders, may only do so on the basis of minimum contacts among the parties, the contested transaction, and the forum State. The Delaware Supreme Court could not have made plainer, however, that its sequestration statute, Del.Code Ann., Tit. 10, § 366 (1975), does not operate on this basis, but instead is strictly an embodiment of quasi in rem jurisdiction, a jurisdictional predicate no longer constitutionally viable:
70
"(J)urisdiction under § 366 remains . . . quasi in rem founded on the presence of capital stock here, not on prior contact by defendants with this forum." Greyhound Corp. v. Heitner, 361 A.2d 225, 229 (1976).
71
This state-court ruling obviously comports with the understanding of the parties, for the issue of the existence of minimum contacts was never pleaded by appellee, made the subject of discovery, or ruled upon by the Delaware courts. These facts notwithstanding, the Court in Part IV reaches the minimum-contacts question and finds such contacts lacking as applied to appellants. Succinctly stated, once having properly and persuasively decided that the quasi in rem statute that Delaware admits to having enacted is invalid, the Court then proceeds to find that a minimum-contacts law that Delaware expressly denies having enacted also could not be constitutionally applied in this case.
72
In my view, a purer example of an advisory opinion is not to be found. True, appellants do not deny having received actual notice of the action in question. Ante, at 213 n. 40. However, notice is but one ingredient of a proper assertion of state-court jurisdiction. The other is a statute authorizing the exercise of the State's judicial power along constitutionally permissible grounds which henceforth means minimum contacts. As of today, § 366 is not such a law.1 Recognizing that today's decision fundamentally alters the relevant jurisdictional ground rules, I certainly would not want to rule out the possibility that Delaware's courts might decide that the legislature's overriding purpose of securing the personal appearance in state courts of defendants would best be served by reinterpreting its statute to permit state jurisdiction on the basis of constitutionally permissible contacts rather than stock ownership. Were the state courts to take this step, it would then become necessary to address the question of whether minimum contacts exist here. But in the present posture of this case, the Court's decision of this important issue is purely an abstract ruling.
73
My concern with the inappropriateness of the Court's action is highlighted by two other considerations. First, an inquiry into minimum contacts inevitably is highly dependent on creating a proper factual foundation detailing the contacts between the forum State and the controversy in question. Because neither the plaintiff-appellee nor the state courts viewed such an inquiry as germane in this instance, the Court today is unable to draw upon a proper factual record in reaching its conclusion; moreover, its disposition denies appellee the normal opportunity to seek discovery on the contacts issue. Second, it must be remembered that the Court's ruling is a constitutional one and necessarily will affect the reach of the jurisdictional laws of all 50 States. Ordinarily this would counsel restraint in constitutional pronouncements. Ashwander v. TVA, 297 U.S. 288, 345-348, 56 S.Ct. 466, 482- 484, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Certainly it should have cautioned the Court against reaching out to decide a question that, as here, has yet to emerge from the state courts ripened for review on the federal issue.
II
74
Nonetheless, because the Court rules on the minimum-contacts question, I feel impelled to express my view. While evidence derived through discovery might satisfy me that minimum contacts are lacking in a given case, I am convinced that as a general rule a state forum has jurisdiction to adjudicate a shareholder derivative action centering on the conduct and policies of the directors and officers of a corporation chartered by that State. Unlike the Court, I therefore would not foreclose Delaware from asserting jurisdiction over appellants were it persuaded to do so on the basis of minimum contacts.
75
It is well settled that a derivative lawsuit as presented here does not inure primarily to the benefit of the named plaintiff. Rather, the primary beneficiaries are the corporation and its owners, the shareholders. "The cause of action which such a plaintiff brings before the court is not his own but the corporation's. . . . Such a plaintiff often may represent an important public and stockholder interest in bringing faithless managers to book." Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 522, 524, 67 S.Ct. 828, 831, 832, 91 L.Ed. 1067 (1947).
76
Viewed in this light, the chartering State has an unusually powerful interest in insuring the availability of a convenient forum for litigating claims involving a possible multiplicity of defendant fiduciaries and for vindicating the State's substantive policies regarding the management of its domestic corporations. I believe that our cases fairly establish that the States's valid substantive interests are important considerations in assessing whether it constitutionally may claim jurisdiction over a given cause of action.
77
In this instance, Delaware can point to at least three interrelated public policies that are furthered by its assertion of jurisdiction. First, the State has a substantial interest in providing restitution for its local corporations that allegedly have been victimized by fiduciary misconduct, even if the managerial decisions occurred outside the State. The importance of this general state interest in assuring restitution for its own residents previously found expression in cases that went outside the then-prevailing due process framework to authorize state-court jurisdiction over nonresident motorists who injure others within the State. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927); see Olberding v. Illinois Central R. Co., 346 U.S. 338, 341, 74 S.Ct. 83, 85, 98 L.Ed. 39 (1953). More recently, it has led States to seek and to acquire jurisdiction over nonresident tortfeasors whose purely out-of-state activities produce domestic consequences. E. g., Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). Second, state courts have legitimately read their jurisdiction expansively when a cause of action centers in an area in which the forum State possesses a manifest regulatory interest. E. g., McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) (insurance regulation); Travelers Health Assn. v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950) (blue sky laws). Only this Term we reiterated that the conduct of corporate fiduciaries is just such a matter in which the policies and interests of the domestic forum are ordinarily presumed to be paramount. Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 478-480, 97 S.Ct. 1292, 1303, 51 L.Ed.2d 480 (1977); see Cort v. Ash, 422 U.S. 66, 84-85, 95 S.Ct. 2080, 2090-2091, 45 L.Ed.2d 26 (1975). Finally, a State like Delaware has a recognized interest in affording a convenient forum for supervising and overseeing the affairs of an entity that is purely the creation of that State's law. For example, even following our decision in International Shoe, New York courts were permitted to exercise complete judicial authority over nonresident beneficiaries of a trust created under state law, even though, unlike appellants here, the beneficiaries personally entered into no association whatsoever with New York. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950);2 cf. Hartford Life Ins. Co. v. Ibs, 237 U.S. 662, 671, 35 S.Ct. 692, 695, 59 L.Ed. 1165 (1915) (litigation concerning management of mortuary fund operated by locally chartered corporation rests in court of that State); Bernheimer v. Converse, 206 U.S. 516, 533, 27 S.Ct. 755, 761, 51 L.Ed. 1163 (1907) (state courts can oversee liquidation of state-chartered corporation). I, of course, am not suggesting that Delaware's varied interests would justify its acceptance of jurisdiction over any transaction touching upon the affairs of its domestic corporations. But a derivative action which raises allegations of abuses of the basic management of an institution whose existence is created by the State and whose powers and duties are defined by state law fundamentally implicates the public policies of that forum.
78
To be sure, the Court is not blind to these considerations. It notes that the State's interests "may support the application of Delaware law to resolve any controversy over appellants' actions in their capacities as officers and directors." Ante, at 215. But this, the Court argues, pertains to choice of law, not jurisdiction. I recognize that the jurisdictional and choice-of-law inquiries are not identical. Hanson v. Denckla, 357 U.S. 235, 254, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). But I would not compartmentalize thinking in this area quite so rigidly as it seems to me the Court does today, for both inquiries "are often closely related and to a substantial degree depend upon similar considerations." Id., at 258, 78 S.Ct., at 1242 (Black, J., dissenting). In either case an important linchpin is the extent of contacts between the controversy, the parties, and the forum State. While constitutional limitations on the choice of law are by no means settled, see, e. g., Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930), important considerations certainly include the expectancies of the parties and the fairness of governing the defendants' acts and behavior by rules of conduct created by a given jurisdiction. See, e. g., Restatement (Second) of Conflict of Laws § 6 (1971) (hereafter Restatement). These same factors bear upon the propriety of a State's exercising jurisdiction over a legal dispute. At the minimum, the decision that it is fair to bind a defendant by a State's laws and rules should prove to be highly relevant to the fairness of permitting that same State to accept jurisdiction for adjudicating the controversy.
79
Furthermore, I believe that practical considerations argue in favor of seeking to bridge the distance between the choice-of-law and jurisdictional inquiries. Even when a court would apply the law of a different forum,3 as a general rule it will feel less knowledgeable and comfortable in interpretation, and less interested in fostering the policies of that foreign jurisdiction, than would the courts established by the State that provides the applicable law. See, e. g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947); Restatement § 313, p. 347; Traynor, Is This Conflict Really Necessary?, 37 Texas L.Rev. 657, 664 (1959). Obviously, such choice-of-law problems cannot entirely be avoided in a diverse legal system such as our own. Nonetheless, when a suitor seeks to lodge a suit in a State with a substantial interest in seeing its own law applied to the transaction in question, we could wisely act to minimize conflicts, confusion, and uncertainty by adopting a liberal view of jurisdiction, unless considerations of fairness or efficiency strongly point in the opposite direction.
80
This case is not one where, in my judgment, this preference for jurisdiction is adequately answered. Certainly nothing said by the Court persuades me that it would be unfair to subject appellants to suit in Delaware. The fact that the record does not reveal whether they "set foot" or committed "act(s) related to (the) cause of action" in Delaware, ante, at 213, is not decisive, for jurisdiction can be based strictly on out-of-state acts having foreseeable effects in the forum State. E. g., McGee v. International Life Ins. Co., supra; Gray v. American Radiator & Standard Sanitary Corp., supra; Restatement § 37. I have little difficulty in applying this principle to nonresident fiduciaries whose alleged breaches of trust are said to have substantial damaging effect on the financial posture of a resident corporation.4 Further, I cannot understand how the existence of minimum contacts in a constitutional sense is at all affected by Delaware's failure statutorily to express an interest in controlling corporate fiduciaries. Ante, at 214. To me this simply demonstrates that Delaware did not elect to assert jurisdiction to the extent the Constitution would allow.5 Nor would I view as controlling or even especially meaningful Delaware's failure to exact from appellants their consent to be sued. Ante, at 216. Once we have rejected the jurisdictional framework created in Pennoyer v. Neff, I see no reason to rest jurisdiction on a fictional outgrowth of that system such as the existence of a consent statute, expressed or implied.6
81
I, therefore, would approach the minimum-contacts analysis differently than does the Court. Crucial to me is the fact that appellants7 voluntarily associated themselves with the State of Delaware, "invoking the benefits and protections of its laws", Hanson v. Denckla, 357 U.S., at 253, 78 S.Ct., at 1240; International Shoe Co. v. Washington, 326 U.S., at 319, 66 S.Ct., at 159, by entering into a long-term and fragile relationship with one of its domestic corporations. They thereby elected to assume powers and to undertake responsibilities wholly derived from that State's rules and regulations, and to become eligible for those benefits that Delaware law makes available to its corporations' officials. E. g., Del.Code Ann., Tit. 8, § 143 (1975) (interest-free loans); § 145 (1975 ed. and Supp.1976) (indemnification). While it is possible that countervailing issues of judicial efficiency and the like might clearly favor a different forum, they do not appear on the meager record before us;8 and, of course, we are concerned solely with "minimum" contacts, not the "best" contacts. I thus do not believe that it is unfair to insist that appellants make themselves available to suit in a competent forum that Delaware might create for vindication of its important public policies directly pertaining to appellants' fiduciary associations with the State.
1
Greyhound Lines, Inc., is incorporated in California and has its principal place of business in Phoenix, Ariz.
2
A judgment of $13,146,090 plus attorneys fees was entered against Greyhound in Mt. Hood Stages, Inc. v. Greyhound Corp., 1972-3 Trade Cas. P 74,824, aff'd, 555 F.2d 687 (CA9 1977). App. 10.
3
See United States v. Greyhound Corp., 363 F.Supp. 525 (ND Ill.1973) and 370 F.Supp. 881 (ND Ill.), aff'd, 508 F.2d 529 (CA7 1974). Greyhound was fined $100,000 and Greyhound Lines $500,000.
4
Section 366 provides:
"(a) If it appears in any complaint filed in the Court of Chancery that the defendant or any one or more of the defendants is a nonresident of the State, the Court may make an order directing such nonresident defendant or defendants to appear by a day certain to be designated. Such order shall be served on such nonresident defendant or defendants by mail or otherwise, if practicable, and shall be published in such manner as the Court directs, not less than once a week for 3 consecutive weeks. The Court may compel the appearance of the defendant by the seizure of all or any part of his property, which property may be sold under the order of the Court to pay the demand of the plaintiff, if the defendant does not appear, or otherwise defaults. Any defendant whose property shall have been so seized and who shall have entered a general appearance in the cause may, upon notice to the plaintiff, petition the Court for an order releasing such property or any part thereof from the seizure. The Court shall release such property unless the plaintiff shall satisfy the Court that because of other circumstances there is a reasonable possibility that such release may render it substantially less likely that plaintiff will obtain satisfaction of any judgment secured. If such petition shall not be granted, or if no such petition shall be filed, such property shall remain subject to seizure and may be sold to satisfy any judgment entered in the cause. The Court may at any time release such property or any part thereof upon the giving of sufficient security.
"(b) The Court may make all necessary rules respecting the form of process, the manner of issuance and return thereof, the release of such property from seizure and for the sale of the property so seized, and may require the plaintiff to give approved security to abide any order of the Court respecting the property.
"(c) Any transfer or assignment of the property so seized after the seizure thereof shall be void and after the sale of the property is made and confirmed, the purchaser shall be entitled to and have all the right, title and interest of the defendant in and to the property so seized and sold and such sale and confirmation shall transfer to the purchaser all the right, title and interest of the defendant in and to the property as fully as if the defendant had transferred the same to the purchaser in accordance with law."
5
As a condition of the sequestration order, both the plaintiff and the sequestrator were required to file bonds of $1,000 to assure their compliance with the orders of the court. App. 24.
Following a technical amendment of the complaint, the original sequestration order was vacated and replaced by an alias sequestration order identical in its terms to the original.
6
The sequestrator is appointed by the court to effect the sequestration. His duties appear to consist of serving the sequestration order on the named corporation, receiving from that corporation a list of the property which the order affects, and filing that list with the court. For performing those services in this case, the sequestrator received a fee of $100 under the original sequestration order and $100 under the alias order.
7
The closing price of Greyhound stock on the day the sequestration order was issued was $143/8. New York Times, May 23, 1974, p. 62. Thus, the value of the sequestered stock was approximately.$1.2 million.
8
Debentures, warrants, and stock unit credits belonging to some of the defendants who owned either stock or options were also sequestered. In addition, Greyhound reported that it had an employment contract with one of the defendants calling for payment of $250,000 over a 12-month period. Greyhound refused to furnish any further information on that debt on the ground that since the sums due constituted wages, their seizure would be unconstitutional. See Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Heitner did not challenge this refusal.
The remaining defendants apparently owned no property subject to the sequestration order.
9
Section 169 provides:
"For all purposes of title, action, attachment, garnishment and jurisdiction of all courts held in this State, but not for the purpose of taxation, the situs of the ownership of the capital stock of all corporations existing under the laws of this State, whether organized under this chapter or otherwise, shall be regarded as in this State."
10
The court relied, 361 A.2d, at 228, 230-231, on our decision in Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921), and references to that decision in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 610, 95 S.Ct. 719, 724, 42 L.Ed.2d 751 (1975) (Powell, J., concurring in judgment); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679 n. 14, 94 S.Ct. 2080, 2090, 40 L.Ed.2d 452 (1974); Mitchell v. W. T. Grant Co., 416 U.S. 600, 613, 94 S.Ct. 1895, 1903, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 91 n. 23, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corp., supra, 395 U.S., at 339, 89 S.Ct., at 1821. The only question before the Court in Ownbey was the constitutionality of a requirement that a defendant whose property has been attached file a bond before entering an appearance. We do not read the recent references to Ownbey as necessarily suggesting that Ownbey is consistent with more recent decisions interpreting the Due Process Clause.
Sequestration is the equity counterpart of the process of foreign attachment in suits at law considered in Ownbey. Delaware's sequestration statute was modeled after its attachment statute. See Sands v. Lefcourt Realty Corp., 35 Del.Ch. 340, 344-345, 117 A.2d 365, 367 (Sup.Ct.1955); Folk & Moyer, Sequestration in Delaware: A Constitutional Analysis, 73 Colum.L.Rev. 749, 751-754 (1973).
11
The District Court judgment in U. S. Industries was reversed by the Court of Appeals for the Third Circuit. 540 F.2d 142 (1976), cert. pending, No. 76-359. The Court of Appeals characterized the passage from the Delaware Supreme Court's opinion quoted in text as "cryptic conclusions." Id., at 149.
12
Under Delaware law, defendants whose property has been sequestered must enter a general appearance, thus subjecting themselves to in personam liability, before they can defend on the merits. See Greyhound Corp. v. Heitner, 361 A.2d 225, at 235-236 (1976). Thus, if the judgment below were considered not to be an appealable final judgment, 28 U.S.C. § 1257(2), appellants would have the choice of suffering a default judgment or entering a general appearance and defending on the merits. This case is in the same posture as was Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 485, 95 S.Ct. 1029, 1041, 43 L.Ed.2d 328 (1975):
"The (Delaware) Supreme Court's judgment is plainly final on the federal issue and is not subject to further review in the state courts. Appellants will be liable for damages if the elements of the state cause of action are proved. They may prevail at trial on nonfederal grounds, it is true, but if the (Delaware) court erroneously upheld the statute, there should be no trial at all."
Accordingly, "consistent with the pragmatic approach that we have followed in the past in determining finality", id., at 486, 95 S.Ct., at 1042, we conclude that the judgment below is final within the meaning of § 1257.
13
The statute also required that a copy of the summons and complaint be mailed to the defendant if his place of residence was known to the plaintiff or could be determined with reasonable diligence. 95 U.S., at 718. Mitchell had averred that he did not know and could not determine Neff's address, so that the publication was the only "notice" given. Id., at 717.
14
The Federal Circuit Court based its ruling on defects in Mitchell's affidavit in support of the order for service by publication and in the affidavit by which publication was proved. Id., at 720. Mr. Justice Field indicated that if this Court had confined itself to considering those rulings, the judgment would have been reversed. Id., at 721.
15
The doctrine that one State does not have to recognize the judgment of another State's courts if the latter did not have jurisdiction was firmly established at the time of Pennoyer. See, e. g., D'Arcy v. Ketchum, 11 How. 165, 13 L.Ed. 648 (1851); Boswell's Lessee v. Otis, 9 How. 336, 13 L.Ed. 164 (1850); Kibbe v. Kibbe, 1 Kirby 119 (Conn.Super.Ct.1786).
16
Attachment was considered essential to the state court's jurisdiction for two reasons. First, attachment combined with substituted service would provide greater assurance that the defendant would actually receive notice of the action than would publication alone. Second, since the court's jurisdiction depended on the defendant's ownership of property in the State and could be defeated if the defendant disposed of that property, attachment was necessary to assure that the court had jurisdiction when the proceedings began and continued to have jurisdiction when it entered judgment. 95 U.S., at 727-728.
17
"A judgment in rem affects the interests of all persons in designated property. A judgment quasi in rem affects the interests of particular persons in designated property. The latter is of two types. In one the plaintiff is seeking to secure a pre-existing claim in the subject property and to extinguish or establish the nonexistence of similar interests of particular persons. In the other the plaintiff seeks to apply what he concedes to be the property of the defendant to the satisfaction of a claim against him. Restatement, Judgments, 5-9." Hanson v. Denckla, 357 U.S. 235, 246 n. 12, 78 S.Ct. 1228, 1235, 2 L.Ed.2d 1283 (1958).
As did the Court in Hanson, we will for convenience generally use the term "in rem" in place of "in rem and quasi in rem."
18
The Court in Harris limited its holding to States in which the principal defendant (Balk) could have sued the garnishee (Harris) if he had obtained personal jurisdiction over the garnishee in that State. 198 U.S., at 222-223, 226, 25 S.Ct., at 626, 627, 628. The Court explained:
"The importance of the fact of the right of the original creditor to sue his debtor in the foreign State, as affecting the right of the creditor of that creditor to sue the debtor or garnishee, lies in the nature of the attachment proceeding. The plaintiff, in such proceeding in the foreign State is able to sue out the attachment and attach the debt due from the garnishee to his (the garnishee's) creditor, because of the fact that the plaintiff is really in such proceeding a representative of the creditor of the garnishee, and therefore if such creditor himself had the right to commence suit to recover the debt in the foreign State his representative has the same right, as representing him, and may garnish or attach the debt, provided the municipal law of the State where the attachment was sued out permits it." Id., at 226, 25 S.Ct., at 628.
The problem with this reasoning is that unless the plaintiff has obtained a judgment establishing his claim against the principal defendant, see, e. g., Baltimore & O. R. Co. v. Hostetter, 240 U.S. 620, 36 S.Ct. 475, 60 L.Ed. 829 (1916), his right to "represent" the principal defendant in an action against the garnishee is at issue. See Beale, The Exercise of Jurisdiction in Rem to Compel Payment of a Debt, 27 Harv.L.Rev. 107, 118-120 (1913).
19
As the language quoted indicates, the International Shoe Court believed that the standard it was setting forth governed actions against natural persons as well as corporations, and we see no reason to disagree. See also McGee v. International Life Ins. Co., 355 U.S. 220, 222, 78 S.Ct. 199, 200, 2 L.Ed.2d 223 (1957) (International Shoe culmination of trend toward expanding state jurisdiction over "foreign corporations and other nonresidents"). The differences between individuals and corporations may, of course, lead to the conclusion that a given set of circumstances establishes state jurisdiction over one type of defendant but not over the other.
20
Nothing in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), is to the contrary. The Hanson Court's statement that restrictions on state jurisdiction "are a consequence of territorial limitations on the power of the respective States", id., 357 U.S., at 251, 78 S.Ct., at 1238, simply makes the point that the States are defined by their geographical territory. After making this point, the Court in Hanson determined that the defendant over which personal jurisdiction was claimed had not committed any acts sufficiently connected to the State to justify jurisdiction under the International Shoe standard.
21
Cf. Restatement (Second) of Conflict of Laws § 59, Comment a (possible inconsistency between principle of reasonableness which underlies field of judicial jurisdiction and traditional rule of in rem jurisdiction based solely on land in State); § 60, Comment a (same as to jurisdiction based solely on chattel in State; § 68, Comment c (rule of Harris v. Balk "might be thought inconsistent with the basic principle of reasonableness") (1971).
22
"All proceedings, like all rights, are really against persons. Whether they are proceedings or rights in rem depends on the number of persons affected." Tyler v. Court of Registration, 175 Mass. 71, 76, 55 N.E. 812, 814 (Holmes, C. J.), appeal dismissed, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252 (1900).
23
It is true that the potential liability of a defendant in an in rem action is limited by the value of the property, but that limitation does not affect the argument. The fairness of subjecting a defendant to state-court jurisdiction does not depend on the size of the claim being litigated. Cf. Fuentes v. Shevin, 407 U.S., at 88-90, 92 S.Ct., at 1998-1999; n. 32, infra.
24
This category includes true in rem actions and the first type of quasi in rem proceedings. See n. 17, supra.
25
In some circumstances the presence of property in the forum State will not support the inference suggested in text. Cf., e. g., Restatement § 60, Comments c, d; Traynor 672-673; Note, The Power of a State to Affect Title in a Chattel Atypically Removed to It, 47 Colum.L.Rev. 767 (1947).
26
Cf. Hanson v. Denckla, 357 U.S., at 253, 78 S.Ct., at 1239.
27
See, e. g., Tyler v. Court of Registration, supra.
28
We do not suggest that these illustrations include all the factors that may affect the decision, nor that the factors we have mentioned are necessarily decisive.
29
Cf. Dubin v. Philadelphia, 34 Pa.D. & C. 61 (1938). If such an action were brought under the in rem jurisdiction rather than under a long-arm statute, it would be a quasi in rem action of the second type. See n. 17, supra.
30
Cf. Smit, The Enduring Utility of In Rem Rules: A Lasting Legacy of Pennoyer v. Neff, 43 Brooklyn L.Rev. 600 (1977). We do not suggest that jurisdictional doctrines other than those discussed in text, such as the particularized rules governing adjudications of status, are inconsistent with the standard of fairness. See, e. g., Traynor 660-661.
31
Concentrating on this category of cases is also appropriate because in the other categories, to the extent that presence of property in the State indicates the existence of sufficient contacts under International Shoe, there is no need to rely on the property as justifying jurisdiction regardless of the existence of those contacts.
32
The value of the property seized does serve to limit the extent of possible liability, but that limitation does not provide support for the assertion of jurisdiction. See n. 23, supra. In this case, appellants' potential liability under the in rem jurisdiction exceeds $1 million. See nn. 7, 8, supra.
33
See supra, at 193, 194. This purpose is emphasized by Delaware's refusal to allow any defense on the merits unless the defendant enters a general appearance, thus submitting to full in personam liability. See n. 12, supra.
34
See North Georgia Finishing, Inc. v. Di-Chem, Inc. 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).
35
The role of in rem jurisdiction as a means of preventing the evasion of obligations, like the usefulness of that jurisdiction to mitigate the limitations Pennoyer placed on in personam jurisdiction, may once have been more significant. Von Mehren & Trautman 1178.
36
Once it has been determined by a court of competent jurisdiction that the defendant is a debtor of the plaintiff, there would seem to be no unfairness in allowing an action to realize on that debt in a State where the defendant has property, whether or not that State would have jurisdiction to determine the existence of the debt as an original matter. Cf. n. 18, supra.
37
This case does not raise, and we therefore do not consider, the question whether the presence of a defendant's property in a State is a sufficient basis for jurisdiction when no other forum is available to the plaintiff.
38
To the contrary, in Pennington v. Fourth National Bank, 243 U.S. 269, 271, 37 S.Ct. 282, 61 L.Ed. 713 (1917), we said:
"The Fourteenth Amendment did not, in guaranteeing due process of law, abridge the jurisdiction which a State possessed over property within its borders, regardless of the residence or presence of the owner. That jurisdiction extends alike to tangible and to intangible property. Indebtedness due from a resident to a non-resident of which bank deposits are an example is property within the State. Chicago, Rock Island & Pacific Ry. Co. v. Sturm, 174 U.S. 710, 19 S.Ct. 797, 43 L.Ed. 1144. It is, indeed, the species of property which courts of the several States have most frequently applied in satisfaction of the obligations of absent debtors. Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023. Substituted service on a non-resident by publication furnishes no legal basis for a judgment in personam. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. But garnishment or foreign attachment is a proceeding quasi in rem. Freeman v. Alderson, 119 U.S. 185, 187, 7 S.Ct. 165, 30 L.Ed. 372, 373. The thing belonging to the absent defendant is seized and applied to the satisfaction of his obligation. The Federal Constitution presents no obstacle to the full exercise of this power."
See also Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, 193, 61 S.Ct. 513, 517, 85 L.Ed. 725 (1941).
More recent decisions, however, contain no similar sweeping endorsements of jurisdiction based on property. In Hanson v. Denckla, 357 U.S., at 246, 78 S.Ct., at 1236, we noted that a state court's in rem jurisdiction is "(f) ounded on physical power" and that "(t)he basis of the jurisdiction is the presence of the subject property within the territorial jurisdiction of the forum State." We found in that case, however, that the property which was the basis for the assertion of in rem jurisdiction was not present in the State. We therefore did not have to consider whether the presence of property in the State was sufficient to justify jurisdiction. We also held that the defendant did not have sufficient contact with the State to justify in personam jurisdiction.
39
It would not be fruitful for us to re-examine the facts of cases decided on the rationales of Pennoyer and Harris to determine whether jurisdiction might have been sustained under the standard we adopt today. To the extent that prior decisions are inconsistent with this standard, they are overruled.
40
Appellants argue that our determination that the minimum-contacts standard of International Shoe governs jurisdiction here makes unnecessary any consideration of the existence of such contacts. Brief for Appellants 27; Reply Brief for Appellants 9. They point out that they were never personally served with a summons that Delaware has no long-arm statute which would authorize such service, and that the Delaware Supreme Court has authoritatively held that the existence of contacts is irrelevant to jurisdiction under Del.Code Ann., Tit. 10, § 366 (1975). As part of its sequestration order, however, the Court of Chancery directed its clerk to send each appellant a copy of the summons and complaint by certified mail. The record indicates that those mailings were made and contains return receipts from at least 19 of the appellants. None of the appellants has suggested that he did not actually receive the summons which was directed to him in compliance with a Delaware statute designed to provide jurisdiction over nonresidents. In these circumstances, we will assume that the procedures followed would be sufficient to bring appellants before the Delaware courts, if minimum contacts existed.
41
On the view we take of the case, we need not consider the significance, if any, of the fact that some appellants hold positions only with a subsidiary of Greyhound which is incorporated in California.
42
Sequestration is an equitable procedure available only in equity actions, but a similar procedure may be utilized in actions at law. See n.10, supra.
43
Delaware does not require directors to own stock. Del.Code Ann., Tit. 8, § 141(b) (Supp.1976).
44
In general, the law of the State of incorporation is held to govern the liabilities of officers or directors to the corporation and its stockholders. See Restatement § 309. But see Cal.Corp.Code § 2115 (West Supp.1977). The rationale for the general rule appears to be based more on the need for a uniform and certain standard to govern the internal affairs of a corporation than on the perceived interest of the State of incorporation. Cf. Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 527-528, 67 S.Ct. 828, 833-834, 91 L.Ed. 1067 (1947).
45
Mr. Justice Black, although dissenting in Hanson, agreed with the majority that "the question whether the law of a State can be applied to a transaction is different from the question whether the courts of that State have jurisdiction to enter a judgment . . . ." 357 U.S., at 258, 78 S.Ct., at 1242.
46
See, e. g., Del.Code Ann., Tit. 8, §§ 143, 145 (1975 ed. and Supp.1976).
47
See, e. g., Conn.Gen.Stat.Rev. § 33-322 (1976); N.C.Gen.Stat. § 55-33 (1975); S.C.Code Ann. § 33-5-70 (1977).
*
"To dispense with personal service the substitute that is most likely to reach the defendant is the least that ought to be required if substantial justice is to be done." McDonald v. Mabee, 243 U.S. 90, 92, 37 S.Ct. 343, 344, 61 L.Ed. 608.
1
Indeed, the Court's decision to proceed to the minimum-contacts issue treats Delaware's sequestration statute as if it were the equivalent of Rhode Island's long-arm law, which specifically authorizes its courts to assume jurisdiction to the limit permitted by the Constitution, R.I.Gen.Laws Ann. § 9-5-33 (1970), thereby necessitating judicial consideration of the frontiers of minimum contacts in every case arising under that statute.
2
The Mullane Court held: "(T)he interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is so insistent and rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity to appear and be heard." 339 U.S., at 313, 70 S.Ct., at 656.
3
In this case the record does not inform us whether an actual conflict is likely to arise between Delaware law and that of the likely alternative forum. Pursuant to the general rule, I assume that Delaware law probably would obtain in the foreign court. Restatement § 309.
4
I recognize, of course, that identifying a corporation as a resident of the chartering State is to build upon a legal fiction. In many respects, however, the law acts as if state chartering of a corporation has meaning. E. g., 28 U.S.C. § 1332(c) (for diversity purposes, a corporation is a citizen of the State of incorporation). And, if anything, the propriety of treating a corporation as a resident of the incorporating State seems to me particularly appropriate in the context of a shareholder derivative suit, for the State realistically may perceive itself as having a direct interest in guaranteeing the enforcement of its corporate laws, in assuring the solvency and fair management of its domestic corporations, and in protecting from fraud those shareholders who placed their faith in that state-created institution.
5
In fact, it is quite plausible that the Delaware Legislature never felt the need to assert direct jurisdiction over corporate managers precisely because the sequestration statute heretofore has served as a somewhat awkward but effective basis for achieving such personal jurisdiction. See, e. g., Hughes Tool Co. v. Fawcett Publications, Inc., 290 A.2d 693, 695 (Del.Ch.1972): "Sequestration is most frequently resorted to in suits by stockholders against corporate directors in which recoveries are sought for the benefit of the corporation on the ground of claimed breaches of fiduciary duty on the part of directors."
6
Admittedly, when one consents to suit in a forum, his expectation is enhanced that he may be haled into that State's courts. To this extent, I agree that consent may have bearing on the fairness of accepting jurisdiction. But whatever is the degree of personal expectation that is necessary to warrant jurisdiction should not depend on the formality of establishing a consent law. Indeed, if one's expectations are to carry such weight, then appellants here might be fairly charged with the understanding that Delaware would decide to protect its substantial interests through its own courts, for they certainly realized that in the past the sequestration law has been employed primarily as a means of securing the appearance of corporate officials in the State's courts. N.5, supra. Even in the absence of such a statute, however, the close and special association between a state corporation and its managers should apprise the latter that the State may seek to offer a convenient forum for addressing claims of fiduciary breach of trust.
7
Whether the directors of the out-of-state subsidiary should be amenable to suit in Delaware may raise additional questions. It may well require further investigation into such factors as the degree of independence in the operations of the two corporations, the interrelationship of the managers of parent and subsidiary in the actual conduct under challenge, and the reasonable expectations of the subsidiary directors that the parent State would take an interest in their behavior. Cf. United States v. First National City Bank, 379 U.S. 378, 384, 85 S.Ct. 528, 531, 13 L.Ed.2d 365 (1965). While the present record is not illuminating on these matters, it appears that all appellants acted largely in concert with respect to the alleged fiduciary misconduct, suggesting that overall jurisdiction might fairly rest in Delaware.
8
And, of course, if a preferable forum exists elsewhere, a State that is constitutionally entitled to accept jurisdiction nonetheless remains free to arrange for the transfer of the litigation under the doctrine of forum non conveniens. See, e. g., Broderick v. Rosner, 294 U.S. 629, 643, 55 S.Ct. 589, 592, 79 L.Ed. 1100 (1935); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504, 67 S.Ct. 839, 841, 91 L.Ed. 1055 (1947).
| 34
|
433 U.S. 406
97 S.Ct. 2766
53 L.Ed.2d 851
DAYTON BOARD OF EDUCATION et al., Petitioners,v.Mark BRINKMAN et al.
No. 76-539.
Argued April 26, 1977.
Decided June 27, 1977.
Syllabus
In this school desegregation case the District Court after an evidentiary hearing held that petitioner Dayton, Ohio, School Board had engaged in racial discrimination in the operation of the city's schools. On the basis of a 'cumulative violation' of the Equal Protection Clause that the court found, which was composed of three elements, viz., (1) substantial racial imbalance in student enrollment patterns throughout the school system; (2) the use of optional attendance zones allowing some white students to avoid attending predominantly black schools; and (3) the School Board's rescission in 1972 of resolutions passed by the previous Board that had acknowledged responsibility in the creation of segregative racial patterns and had called for various types of remedial measures, the District Court, following reversals by the Court of Appeals of more limited remedies, ultimately formulated and the Court of Appeals approved, a systemwide remedy. The plan required, beginning with the 1976-1977 school year, that the racial composition of each school in the district be brought within 15% of Dayton's 48%-52% black-white population ratio, to be accomplished by a variety of desegregation techniques, including the 'pairing' of schools, the redefinition of attendance zones, and a variety of centralized special programs and 'magnet schools.' Held:
1. Judged most favorably to respondent parents of black children, the District Court's findings of constitutional violations did not suffice to justify the systemwide remedy. The finding that pupil population in the various Dayton schools is not homogeneous, standing by itself, is not a violation of the Fourteenth Amendment absent a showing that this condition resulted from intentionally segregative actions on the part of the Board. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2041, 48 L.Ed.2d 597. The court's finding as to the optional attendance zones applied to three high schools, and assuming that under Washington standards a violation was involved, only high school districting was implicated. And the conclusion that the Board's rescission action constituted a constitutional violation is of dubious soundness. It was thus not demonstrated that the systemwide remedy, in effect imposed by the Court of Appeals, was necessary to 'eliminate all vestiges of the state-imposed school segregation.' Pp. 413-418.
2. In view of the confusion at various stages in this case as to the applicable principles and appropriate relief, the case must be remanded to the District Court. The ambiguous phrase 'cumulative violation' used by both courts below, does not overcome the disparity between the evidence of constitutional violations and the sweeping remedy finally decreed. More specific findings must be made, and if necessary, the record must be supplemented. Conclusions as to violations must be made in light of this Court's opinions here and in Washington v. Davis, supra, and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, and a remedy must be fashioned in light of the rule laid down in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, and elaborated on in Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792. In a case like this, where mandatory racial segregation has long since ceased, it must first be determined if the school board intended to, and did in fact, discriminate, and all appropriate additional evidence should be adduced; and only if systemwide discrimination is shown may there be a systemwide remedy. Meanwhile, the present plan should remain in effect for the coming school year subject to further District Court orders as additional evidence might warrant. Pp. 418-421.
539 F.2d 1084, vacated and remanded.
David C. Greer, Dayton, Ohio, for petitioners.
Louis R. Lucas, Memphis, Tenn., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
This school desegregation action comes to us after five years and two round trips through the lower federal courts.1 Those protracted proceedings have been devoted to the formulation of a remedy for actions of the Dayton Board of Education found to be in violation of the Equal Protection Clause of the Fourteenth Amendment. In the decision now under review, the Court of Appeals for the Sixth Circuit finally approved a plan involving districtwide racialdistribution requirements, after rejecting two previous, less sweeping orders by the District Court. The plan required, beginning with the 1976-1977 school year, that the racial distribution of each school in the district be brought within 15% of the 48%-52% black-white population ratio of Dayton.2 As finally formulated, the plan employed a variety of desegregation techniques, including the 'pairing'3 of schools, the redefinition of attendance zones, and a variety of centralized special programs and 'magnet schools.' We granted certiorari, 429 U.S. 1060, 97 S.Ct. 782, 50 L.Ed.2d 775 (1977), to consider the propriety of this court-ordered remedy in light of the constitutional violations which were found by the courts below.
2
Whatever public notice this case has received as it wended its way from the United States District Court for the Southern District of Ohio to this Court has been due to the fact that it represented an effort by minority plaintiffs to obtain relief from alleged unconstitutional segregation of the Dayton public schools said to have resulted from actions by the petitioner School Board. While we would by no means discount the importance of this aspect of the case, we think that the case is every bit as important for the issues it raises as to the proper allocation of functions between the district courts and the courts of appeals within the federal judicial system.
3
Indeed, the importance of the judicial administration aspects of the case are heightened by the presence of the substantive issues on which it turns. The proper observance of the division of functions between the federal trial courts and the federal appellate courts is important in every case. It is especially important in a case such as this where the District Court for the Southern District of Ohio was not simply asked to render judgment in accordance with the law of Ohio in favor of one private party against another; it was asked by the plaintiffs, parents of students in the public school system of a large city, to restructure the administration of that system.
4
There is no doubt that federal courts have authority to grant appropriate relief of this sort when constitutiona violations on the part of school officials are proved. Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Wright v. Cuncil of City of Emporia, 407 U.S 451, 92 S.Ct 2196, 33 L.Ed.2d 51 (1972); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). But our cases have just as firmly recognized that local autonomy of school districts is a vital national tradition. Milliken v. Bradley, 418 U.S. 717, 741-742, 94 S.Ct. 3112, 3125-3126, 41 L.Ed.2d 1069 (1974); San Antonio School District v. Rodriguez, 411 U.S. 1, 50, 93 S.Ct. 1278, 1305, 36 L.Ed.2d 16 (1973); Wright v. Council of City of Emporia, supra, 407 U.S., at 469, 92 S.Ct., at 2206. It is for this reason that the case for displacement of the local authorities by a federal court in a school desegregation case must be satisfactorily established by factual proof and justified by a reasoned statement of legal principles. Cf. Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976).
5
The lawsuit was begun in April 1972, and the District Court filed its original decision on February 7, 1973. The District Court first surveyed the past conduct of affairs by the Dayton School Board, and found 'isolated but repeated instances of failure by the Dayton School Board to meet the standards of the Ohio law mandating an integrated school system.'4 It cited instances of physical segregation in the schools during the early decades of this century,5 but concluded that '(b)oth by reason of the substantial time that (had) elapsed and because these practices have ceased, . . . the foregoing will not necessarily be deemed to be evidence of a continuing segregative policy.'
6
The District Court also found that as recently as the 1950's, faculty hiring had not been on a racially neutral basis, but that '(b)y 1963, under a policy designated as one of 'dynamic gradualism,' at least one black teacher had been assigned to all eleven high schools and to 35 of the 66 schools in the entire system.' It further found that by 1969 each school in the Dayton system had an integrated teaching staff consisting of at least one black faculty member. The court's conclusion with respect to faculty hiring was that pursuant to a 1971 agreement with the Department of Health, Education, and Welfare, 'the teaching staff of the Dayton public schools became and still remains substantially integrated.'6
7
The District Court noted that Dunbar High School had been established in 1933 as a black high school, taught by black teachers and attended by black pupils. At the time of its creation there were no attendance zones in Dayton and students were permitted liberal transfers, so that attendance at Dunbar was voluntary. The court found that Dunbar continued to exist as a citywide all-black high school until it closed in 1962.
8
Turning to more recent operations of the Dayton public schools, the District Court found that the 'great majority' of the 66 schools were imbalanced and that, with one exception,7 the Dayton School Board had made no affirmative effort to achieve racial balance within those schools. But the court stated that there was no evidence of racial discrimination in the establishment or alteration of attendance boundaries or in the site selection and construction of new schools and school additions. It considered the use of optional attendance zones8 within the district, and concluded that in the majority of cases the 'optional zones had no racial significance at the time of their creation.' It made a somewhat ambiguous finding as to the effect of some of the zones in the past,9 and concluded that although none of the optional elementary school attendance zones today 'have any significant potential effects in terms of increased racial separation,' the same cannot be said of the optional high school zones. Two zones in particular, 'those between Roosevelt and Colonel White and between Kiser and Colonel White, are by far the largest in the system and have had the most demonstrable racial effects in the past.'10
9
The court found no evidence that the district's 'freedom of enrollment' policy had 'been unfairly operated or that black students (had) been denied transfers because of their race.' Finally the court considered action by a newly elected Board on January 3, 1972, rescinding resolutions, passed by the previous Board, which had acknowledged a role played by the Board in the creation of segregative racial patterns and had called for various types of remedial measures. The District Court's ultimate conclusion was that the 'racially imbalanced schools, optional attendance zones, and recent Board action . . . are cumulatively in violation of the Equal Protection Clause.'
10
The District Court's use of the phrase 'cumulative violation' is unfortunately not free from ambiguity. Treated most favorably to the respondents, it may be said to represent the District Court's opinion that there were three separate although relatively isolated instances of unconstitutional action on the part of petitioners. Treated most favorably to the petitioners, however, they must be viewed in quite a different light. The finding that the pupil population in the various Dayton schools is not homogeneous, standing by itself, is not a violation of the Fourteenth Amendment in the absence of a showing that this condition resulted from intentionally segregative actions on the part of the Board. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). The District Court's finding as to the effect of the optional attendance zones for the three Dayton high schools, assuming that it was a violation under the standards of Washington v. Davis, supra, appears to be so only with respect to high school districting. Swann, 402 U.S., at 15, 91 S.Ct., at 1275. The District Court's conclusion that the Board's rescission of previously adopted School Board resolutions was itself a constitutional violation is also of questionable validity.
11
The Board had not acted to undo operative regulations affecting the assignment of pupils or other aspects of the management of school affairs, cf. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), but simply repudiated a resolution of a predecessor Board stating that it recognized its own fault in not taking affirmative action at an earlier date. We agree with the Court of Appeals' treatment of this action, wherein that court said:
12
'The question of whether a rescission of previous Board action is in and of itself a violation of appellants' constitutional rights is inextricably bound up with the question of whether the Board was under a constitutional duty to take the action which it initially took. Cf. Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). If the Board was not under such a duty, then the rescission of the initial action in and of itself cannot be a constitutional violation. If the Board was under such a duty, then the rescission becomes a part of the cumulative violation, and it is not necessary to ascertain whether the rescission ipso facto is an independent violation of the Constitution.' Brinkman v. Gilligan, 503 F.2d 684, 697 (1974).
13
Judged most favorably to the petitioners, then, the District Court's findings of constitutional violations did not, under our cases, suffice to justify the remedy imposed. Nor is light cast upon the District Court's finding by its repeated use of the phrase 'cumulative violation.' We realize, of course, that the task of factfinding in a case such as this is a good deal more difficult than is typically the case in a more orthodox lawsuit. Findings as to the motivations of multimembered public bodies are of necessity difficult, cf. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and the question of whether demographic changes resulting in racial concentration occurred from purely neutral public actions or were instead the intended result of actions which appeared neutral on their face but were in fact invidiously discriminatory is not an easy one to resolve.
14
We think it accurate to say that the District Court's formulation of a remedy on the basis of the three-part 'cumulative violation' was certainly not based on an unduly cautious understanding of its authority in such a situation. The remedy which it originally propounded in light of these findings of fact included requirements that optional attendance zones be eliminated, and that faculty assignment practices and hiring policies with respect to classified personnel be tailored to achieve representative racial distribution in all schools.11 The one portion of the remedial plan submitted by the School Board which the District Court refused to accept without change was that which dealt with so-called 'freedom of enrollment priorities.' The court ordered that, as applied to high schools, new students at each school be chosen at random from those wishing to attend.12 The Board was required to furnish transportation for all students who chose to attend a high school outside the attendance area of their residence.
15
Both the plaintiffs and the defendant School Board appealed the order of the District Court to the United States Court of Appeals for the Sixth Circuit. Brinkman v. Gilligan, supra. That court considered at somewhat greater length than had the District Court both the historical instances of alleged racial discrimination by the Dayton School Board and the circumstances surrounding the adoption of the Board's resolutions and the subsequent rescission of those resolutions. This consideration was in a purely descriptive vein: no findings of fact made by the District Court were reversed as having been clearly erroneous, and the Court of Appeals engaged in no factfinding of its own based on evidence adduced before the District Court. The Court of Appeals then focused on the District Court's finding of a three-part 'cumulative' constitutional violation consisting of racially imbalanced schools, optional attendance zones, and the rescission of the Board resolutions. It found these to be 'amply supported by the evidence.'
16
Plaintiffs in the District Court, respondents here, had cross-appealed from the order of the District Court, contending that the District Court had erred in failing to make further findings tending to show segregative actions on the part of the Dayton School Board, but the Court of Appeals found it unnecessary to pass on these contentions. The Court of Appeals also stated that it was unnecessary to 'pass on the question of whether the rescission (of the Board resolutions) by itself was a violation of' constitutional rights. It did discuss at length what it described as 'serious questions' as to whether Board conduct relating to staff assignment, school construction, grade structure and reorganization, and transfers and transportation, should have been included within the 'cumulative violation' found by the District Court. But it did no more than discuss these questions; it neither upset the factual findings of the District Court nor reversed the District Court's conclusions of law.
17
Thus, the Court of Appeals, over and above its historical discussion of the Dayton school situation, dealt with and upheld only the three-part 'cumulative violation' found by the District Court. But it nonetheless reversed the District Court's approval of the School Board plan as modified by the District Court, because the Court of Appeals concluded that 'the remedy ordered . . . is inadequate, considering the scope of the cumulative violations.' While it did not discuss the specifics of any plan to be adopted on remand, it repeated the admonition that the court's duty is to eliminate 'all vestiges of state-imposed school segregation.' Keyes, 413 U.S., at 202, 93 S.Ct., at 2694; Swann, 402 U.S., at 15, 91 S.Ct., at 1275.
18
Viewing the findings of the District Court as to the three-part 'cumulative violation' in the strongest light for the respondents, the Court of Appeals simply had no warrant in our cases for imposing the systemwide remedy which it apparently did. There had been no showing that such a remedy was necessary to 'eliminate all vestiges of the state-imposed school segregation.' It is clear from the findings of the District Court that Dayton is a racially mixed community, and that many of its schools are either predominantly white or predominantly black. This fact without more, of course, does not offend the Constitution. Spencer v. Kugler, 404 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972); Swann, supra, 402 U.S., at 24, 91 S.Ct., at 1280. The Court of Appeals seems to have viewed the present structure of the Dayton school system as a sort of 'fruit of the poisonous tree,' since some of the racial imbalance that presently obtains may have resulted in some part from the three instances of segregative action found by the District Court. But instead of tailoring a remedy commensurate to the three specific violations, the Court of Appeals imposed a systemwide remedy going beyond their scope.
19
On appeal, the task of a court of appeals is defined with relative clarity; it is confined by law and precedent, just as are those of the district courts and of this Court. If it concludes that the findings of the district court are clearly erroneous, it may set them aside under Fed.Rule Civ.Proc. 52(a). If it decides that the district court has misapprehended the law, it may accept that court's findings of fact but reverse its judgment because of legal errors. Here, however, as we conceive the situation, the Court of Appeals did neither. It was vaguely dissatisfied with the limited character of the remedy which the District Court had afforded plaintiffs, and proceeded to institute a far more sweeping one of its own, without in any way upsetting the District Court's findings of fact or reversing its conclusions of law.
20
The Court of Appeals did not actually specify a remedy, but did, in increasingly strong language in subsequent opinions, require that any plan eliminate systemwide patterns of one-race schools predominant in the district. Brinkman v. Gilligan, 518 F.2d 853, 855 (1975). In the face of this commandment, the District Court, after twice being reversed, observed:
21
'This court now reaches the reluctant concluson that there exists no feasible method of complying with the mandate of the United States Court of Appeals for the Sixth Circuit without the transportation of a substantial number of students in the Dayton school system. Based upon the plans of both the plaintiff and defendant the assumption must be that the transportation of approximately 15,000 students on a regular and permanent basis will be required.'
22
We think that the District Court would have been insensitive indeed to the nuances of the repeated reversals of its orders by the Court of Appeals had it not reached this conclusion. In effect, the Court of Appeals imposed a remedy which we think is entirely out of proportion to the constitutional violations found by the District Court, taking those findings of violations in the light most favorable to respondents.
23
This is not to say that the last word has been spoken as to the correctness of the District Court's findings as to unconstitutionally segregative actions on the part of the petitioners. As we have noted, respondents appealed from the initial decision and order of the District Court, asserting that additional violations should have been found by that court. The Court of Appeals found it unnecessary to pass upon the respondents' contentions in its first decision, and respondents have not cross-petitioned for certiorari in this Court from the decision of the Court of Appeals. Nonetheless, they are entitled under our precedents to urge any grounds which would lend support to the judgment below, and we think that their contentions of unconstitutionally segregative actions, in addition to those found as fact by the District Court, fall into this category. In view of the confusion at various stages in this case, evident from the opinions both of the Court of Appeals and the District Court, as to the applicable principles and appropriate relief, the case must be remanded to the District Court for the making of more specific findings and, if necessary, the taking of additional evidence.
24
If the only deficiency in the record before us were the failure of the Court of Appeals to pass on respondents' assignments of error respecting the initial rulings of the District Court, it would be appropriate to remand the case. But we think it evident that supplementation of the record will be necessary. Apart from what has been said above with respect to the use of the ambiguous phrase 'cumulative violation' by both courts, the disparity between the evidence of constitutional violations and the sweeping remedy finally decreed requires supplementation of the record and additional findings addressed specifically to the scope of the remedy. It is clear that the presently mandated remedy cannot stand upon the basis of the violations found by the District Court.
25
The District Court, in the first instance, subject to review by the Court of Appeals, must make new findings and conclusions as to violations in the light of this opinion Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). It must then fashion a remedy in the light of the rule laid down in Swan, and elaborated upon in Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976). The power of the federal courts to restructure the operation of local and state governmental entities 'is not plenary. It 'may be exercised 'only on the basis of a constitutional violation." (Milliken v. Bradley), 418 U.S., at 738, 94 S.Ct. (3112), at 3124, 41 L.Ed.2d at 1087, quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554, 556-67. See Rizzo v. Goode, 423 U.S. 362, 377, 96 S.Ct. 598, 46 L.Ed.2d 561. Once a constitutional violation is found, a federal court is required to tailor 'the scope of the remedy' to fit 'the nature and extent of the constitutional violation.' 418 U.S., at 744, 94 S.Ct. (3112), at 3127, 41 L.Ed.2d at 1091. Swann, supra, at 402 U.S., at 16, 91 S.Ct. (1267), at 1276, 28 L.Ed.2d at 566-67.' Id., at 293-294, 96 S.Ct., at 1544. See also Austin Independent School Dist. v. United States, 429 U.S. 990, 991, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976) (POWELL, J., concurring).
26
The duty of both the District Court and the Court of Appeals, in a case such as this, where mandatory segregation by law of the races in the schools has long since ceased, is to first determine whether there was any action in the conduct of the business of the School Board which was intended to, and did in fact, discriminate against minority pupils, teachers, or staff. Washington v. Davis, supra. All parties should be free to introduce such additional testimony and other evidence as the District Court may deem appropriate. If such violations are found, the District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy. Keyes, 413 U.S., at 213, 93 S.Ct., at 2699.
27
We realize that this is a difficult task, and that it is much easier for a reviewing court to fault ambiguous phrases such as 'cumulative violation' than it is for the finder of fact to make the complex factual determinations in the first instance. Nonetheless, that is what the Constitution and our cases call for, and that is what must be done in this case.
28
While we have found that the plan implicitly, if not explicitly, imposed by the Court of Appeals was erroneous on the present state of the record, it is undisputed that it has been in effect in the Dayton school system during the present year without creating serious problems. While a school board and a school constituency which attempt to comply with a plan to the best of their ability should not be penalized, we think that the plan finally adopted by the District Court should remain in effect for the coming school year subject to such further orders of the District Court as it may find warranted following the hearings mandated by this opinion.
29
The judgment of the Court of Appeals is vacated, and the cause is remanded for further proceedings consistent with this opinion.
30
It is so ordered.
31
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
32
Mr. Justice STEVENS, concurring.
33
With the caveat that the relevant finding of intent in a case of this kind necessarily depends primarily on objective evidence concerning the effect of the Board's action, rather than the subjective motivation of one or more members of the Board, see Washington v. Davis, 426 U.S. 229, 253-254, 96 S.Ct. 2040, 2054, 48 L.Ed.2d 597 (STEVENS, J., concurring), I join the Court's opinion.
34
Mr. Justice BRENNAN, concurring in the judgment.
35
The Court today reaffirms the authority of the federal courts 'to grant appropriate relief of this sort (i. e., busing) when constitutional violations on the part of school officials are proved. Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973) . . .' Ante, at 410. In this case, however, the violations actually found by the District Court were not sufficient to justify the remedy imposed. Indeed, none of the parties contends otherwise. Respondents nowhere argue that the three 'cumulative violations' should by themselves be sufficient to support the comprehensive, systemwide busing order imposed. Instead, they urge us to find that other, additional actions by the School Board appearing in the record should be used to support the result. The United States, as amicus curiae, concedes that the 'three-part 'cumulative' violation found by the district court does not support its remedial order,' Brief for United States as Amicus Curiae 21, and also urges us to affirm the busing order by resort to other, additional evidence in the record. Under this circumstance, I agree with the result reached by the Court. I do so because it is clear from the holding in this case, and that in Milliken v. Bradley, 433 U.S. 267, 288, 97 S.Ct. 2749, 2761, 53 L.Ed.2d 745 (1977), also decided today, that the 'broad and flexible equity powers' of district courts to remedy unlawful school segregation continue unimpaired.
36
This case thus does not turn upon any doubt of power in the federal courts to remedy state-imposed segregation. Rather, as the Court points out, it turns upon the 'proper allocation of functions between the district courts and the courts of appeals within the federal judicial system.' Ante, at 409. As the Court recognizes, the task of the district courts and courts of appeals is a particularly difficult one in school desegregation cases, ante, at 420. Although the efforts of both the District Court and the Court of Appeals in this protracted litigation deserve our commendation, it is plain that the proceedings in the two courts resulted in a remedy going beyond the violations so far found.
37
On remand, the task of the District Court, subject to review by the Court of Appeals, will be to make further findings of fact from evidence already in the record, and, if appropriate, as supplemented by additional evidence. The additional facts, combined with those upon which the violations already found are based, must then be evaluated to determine what relief is appropriate to remedy the resulting unconstitutional segregation. In making this determination, the courts of course 'need not, and cannot, close their eyes to inequalities, shown by the record, which flow from a longstanding segregated system.' Milliken v. Bradley, supra, at 283, 97 S.Ct., at 283.
38
Although the three violations already found are not of themselves sufficient to support the broad remedial order entered below, this is not to say that the three violations are insignificant. While they are not sufficient to justify the remedy imposed when considered solely as unconstitutional action, they clearly are very significant as indicia of intent on the part of the School Board. As we emphasized in Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 207, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548 (1973): 'Plainly, a finding of intentional segregation as to a portion of a school system is not devoid of probative value in assessing the school authorities' intent with respect to other parts of the same school system.' Once segregative intent is found, the District Court may more readily conclude that not only blatant, but also subtle inaction justify a finding of unconstitutional inaction justify a finding of unconstitutional segregation that must be redressed by a remedial busing order such as that imposed in this case.
39
If it is determined on remand that the School Board's unconstitutional actions had a 'systemwide impact,' then the court should order a 'systemwide remedy.' Ante, at 420. Under Keyes, once a school board's actions have created a segregated dual school system, then the school board 'has the affirmative duty to desegregate the entire system 'root and branch." 413 U.S., at 213, 93 S.Ct., at 2700. Or, as stated by the Court today in Milliken, the school board must 'take the necessary steps 'to eliminate from the public schools all vestiges of state-imposed segregation." Supra, 433 U.S., at 290, 97 S.Ct., at 2762 (quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971)). A judicial decree to accomplish this result must be formulated with great sensitivity to the practicalities of the situation, without ever losing sight of the paramount importance of the constitutional rights being enforced. The District Court must be mindful not only of its 'authority to grant appropriate relief,' ante, at 410, but also of its duty to remedy fully those constitutional violations it finds. It should be flexible but unflinching in its use of its equitable powers, always conscious that it is the rights of individual school children that are at stake, and that it is the constitutional right to equal treatment for all races that is being protected.
1
This action was filed on April 17, 1972, by parents of black children attending schools operated by the defendant Dayton Board of Education. After an expedited hearing between November 13 and December 1, 1972, the District Court for the Southern District of Ohio, on February 7, 1973, rendered findings of fact and conclusions of law directing the formulation of a desegregation plan. App. 1. On July 13, 1973, that court approved, with certain modifications, a plan proposed by the School Board. On appeal to the Court of Appeals for the Sixth Circuit, that court affirmed the findings of fact but reversed and remanded as to the proposed remedial plan. Brinkman v. Gilligan, 503 F.2d 684 (C.A.6 1974).
The District Court then ordered the submission of new plans by the Board and by any other interested parties. App. 70. On March 10, 1975, it rejected a plan proposed by the plaintiffs, and, with some modifications, approved the Board's plan as modified and expanded in an effort to comply with the Court of Appeals mandate. Id., at 73. On appeal, the Court of Appeals again reversed as to remedy and directed that the District Court 'adopt a system-wide plan for the 1976-1977 school year . . ..' Brinkman v. Gilligan, 518 F.2d 853 (1975).
Upon this second remand, the District Court, on December 29, 1975, ordered formulation of the plan whose terms are developed below. App. 99. On March 25, 1976, the details of the plan were approved by the District Court. Id., at 114. In the decision now under review, the Court of Appeals affirmed. Brinkman v. Gilligan, 539 F.2d 1084 (1976).
2
The District Court said that it would deal on a case-by-case basis with failures to bring individual schools into compliance with this requirement. It also ordered that students already enrolled in the 10th and 11th grades be allowed to finish in their present high schools, and announced the following 'guidelines' to be followed 'whenever possible' in the case of elementary school students:
'1. Students may attend neighborhood walk-in schools in those neighborhoods where the schools already have the approved ratio;
'2. Students should be transported to the nearest available school;
'3. No student should be transported for a period of time exceeding twenty (20) minutes, or two (2) miles, whichever is shorter.' App. 104.
3
'Pairing' is the designation of two or more schools with contrasting racial composition for an exchange program where a large proportion of the students in each school attend the paired school for some period. In the plan adopted by the District Court, it was the primary remedy used in the case of elementary schools.
4
The court pointed out that since 1888 Ohio law as construed by the Ohio Supreme Court has forbidden separate public schools for black and white children. See Ohio Rev.Code Ann. § 3313.48 (1972); Board of Education v. State, 45 Ohio St. 555, 16 N.E. 373 (1888).
5
'Such instances include a physical segregation into separate buildings of pupils and teachers by race at the Garfield School in the early 1920's, a denial to blacks of access to swimming pools in high schools in the 1930's and 1940's and the exclusion, between 1938 and 1948, of black high school teams from the city athletic conference.' App. 2-3 (footnote omitted).
6
The court also considered employment of nonteaching personnel, and observed that blacks made up a proportion of the nonteaching, nonadministrative personnel equal to the proportion of black students in the district, though in certain occupations they were represented at a substantially lower rate.
7
The court noted that a concerted effort had been made in the past few years to enroll more black students at the Patterson Co-op High School.
8
An optional zone is an area between two attendance zones, the student residents of which are free to choose which of the two schools they wish to attend.
9
The District Court found that three optional high school zones 'may have' had racial significance at the time of their creation.
10
The following information about those zones is contained in an appendix to the District Court opinion:
black population
High Schools Date of creation At date of creation 1972-73
Roosevelt/......... 1951 31.5 100.0
Colonel White (extended 1958) 0.0 54.6
Kiser/............. 1962 2.7 9.8
Colonel White 1.1 54.6
11
The District Court's first plan also contained the following provisions:
(V) Establishment of four citywide elementary science centers the enrollment of which would approximate the existing black-white ratio of students in the system;
(VI) Combination of two high schools into a unified cooperative school with districtwide attendance areas;
(VII) Formation of elementary and high school all-city bands, orchestras, and choruses;
(VIII) Provisions for scheduling of integrated athletics;
(IX) Establishment of a minority language program for education of staff;
(X) Utilization of the Living Arts Center for inter-racial experiences in art, creative writing, dance, and drama;
(XI) Creation of centers for rumor control, school guidance, and area learning. See App. 35 36.
12
The court thus eliminated a provison within the Board plan which gave first priority to students residing within the school's attendance zone.
| 12
|
433 U.S. 321
97 S.Ct. 2720
53 L.Ed.2d 786
E. C. DOTHARD et al., Appellantsv.Dianne RAWLINSON et al.
No. 76-422.
Argued April 19, 1977.
Decided June 27, 1977.
Syllabus
After her application for employment as a 'correctional counselor' (prison guard) in Alabama was rejected because she failed to meet the minimum 120-pound weight requirement of an Alabama statute, which also establishes a height minimum of 5 feet 2 inches, appellee Rawlinson (hereafter appellee) filed a charge with the Equal Employment Opportunity Commission and ultimately brought a class action against appellant corrections officials challenging the statutory height and weight requirements and a regulation establishing gender criteria for assigning correctional counselors to 'contact' positions (positions requiring close physical proximity to inmates) as violative of Title VII of the Civil Rights Act of 1964, inter alia. A three-judge District Court decided in appellee's favor. On the basis of national statistics as to the comparative height and weight of men and women indicating that Alabama's statutory standards would exclude over 40% of the female population but less than 1% of the male population, the court found that with respect to such standards appellee had made out a prima facie case of unlawful sex discrimination, which appellants had failed to rebut. The court also found the challenged regulation impermissible under Title VII as being based on stereotyped characterizations of the sexes, and, rejecting appellants' bona-fide-occupational-qualification defense under § 703(e) of Title VII, ruled that being male was not such a qualification for the job of correctional counselor in a 'contact' position in an Alabama male maximum-security penitentiary. Held:
1. The District Court did not err in holding that Title VII prohibited application of the statutory height and weight requirements to appellee and the class she represents. Pp. 328-332.
(a) To establish a prima facie case of employment discrimination, a plaintiff need only show that the facially neutral standards in question, such as Alabama's height and weight standards, select applicants for hire in a significantly discriminatory pattern, and here the showing of the disproportionate impact of the height and weight standards on women based on national statistics, rather than on comparative statistics of actual applicants, sufficed to make out a prima facie case. Pp. 328-331.
(b) Appellants failed to rebut the prima facie case of discrimination on the basis that the height and weight requirements are job related in that they have a relationship to the strength essential to efficient job performance as a correctional counselor, where appellants produced no evidence correlating such requirements with the requisite amount of strength thought essential to good job performance, and in fact failed to offer evidence of any kind in specific justification of the statutory standards. P. 331.
2. In the particular circumstances of this case, the District Court erred in rejecting appellants' contention that the regulation in question falls within the narrow ambit of the bona-fide-occupational-qualification exception of § 703(e), it appearing from the evidence that Alabama maintains a prison system where violence is the order of the day, inmate access to guards is facilitated by dormitory living arrangements, every correctional institution is understaffed, and a substantial portion of the inmate population is composed of sex offenders mixed at random with other prisoners, and that therefore the use of women guards in 'contact' positions in the maximum-security male penitentiaries would pose a substantial security problem, directly linked to the sex of the prison guard. Pp. 332-337.
418 F.Supp. 1169, affirmed in part, reversed in part, and remanded.
G. Daniel Evans, Montgomery, Ala., for the appellants, pro hac vice, by special leave of Court.
Pamela S. Horowitz, Montgomery, Ala., for the appellees, pro hac vice, by special leave of Court.
Mr. Justice STEWART delivered the opinion of the Court.
1
Appellee Dianne Rawlinson sought employment with the Alabama Board of Corrections as a prison guardCalled in Alabama a 'correctional counselor.' After her application was rejected, she brought this class suit under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V), and under 42 U.S.C. § 1983, alleging that she had been denied employment because of her sex in violation of federal law. A three-judge Federal District Court for the Middle District of Alabama decided in her favor. Mieth v. Dothard, 418 F.Supp. 1169. We noted probable jurisdiction of this appeal from the District Court's judgment. 429 U.S. 976, 97 S.Ct. 483, 50 L.Ed.2d 583.1
2
* At the time she applied for a position as correctional counselor trainee, Rawlinson was a 22-year-old college graduate whose major course of study had been correctional psychology. She was refused employment because she failed to meet the minimum 120-pound weight requirement established by an Alabama statute. The statute also establishes a height minimum of 5 feet 2 inches.2
3
After her application was rejected because of her weight, Rawlinson filed a charge with the Equal Employment Opportunity Commission, and ultimately received a right-to-sue letter.3 She then filed a complaint in the District Court on behalf of herself and other similarly situated women, challenging the statutory height and weight minima as violative of Title VII and the Equal Protection Clause of the Fourteenth Amendment.4 A three-judge court was convened.5 While the suit was pending, the Alabama Board of Corrections adopted Administrative Regulation 204, establishing gender criteria for assigning correctional counselors to maximum-security institutions for 'contact positions,' that is, positions requiring continual close physical proximity to inmates of the institution.6 Rawlinson amended her class-action complaint by adding a challenge to regulation 204 as also violative of Title VII and the Fourteenth Amendment.
4
Like most correctional facilities in the United States,7 Alabama's prisons are segregated on the basis of sex. Currently the Alabama Board of Corrections operates four major all-male penitentiaries Holman Prison, Kilby Corrections Facility, G. K. Fountain Correction Center, and Draper Correctional Center. The Board also operates the Julia Tutwiler Prison for Women, the Frank Lee Youth Center, the Number Four Honor Camp, the State Cattle Ranch, and nine Work Release Centers, one of which is for women. The Julia Tutwiler Prison for Women and the four male penitentiaries are maximum-security institutions. Their inmate living quarters are for the most part large dormitories, with communal showers and toilets that are open to the dormitories and hallways. The Draper and Fountain penitentiaries carry on extensive farming operations, making necessary a large number of strip searches for contraband when prisoners re-enter the prison buildings.
5
A correctional counselor's primary duty within these institutions is to maintain security and control of the inmates by continually supervising and observing their activities.8 To be eligible for consideration as a correctional counselor, an applicant must possess a valid Alabama driver's license, have a high school education or its equivalent, be free from physical defects, be between the ages of 20 1/2 years and 45 years at the time of appointment, and fall between the minimum height and weight requirements of 5 feet 2 inches, and 120 pounds, and the maximum of 6 feet 10 inches, and 300 pounds. Appointment is by merit, with a grade assigned each applicant based on experience and education. No written examination is given.
6
At the time this litigation was in the District Court, the Board of Corrections employed a total of 435 people in various correctional counselor positions, 56 of whom were women. Of those 56 women, 21 were employed at the Julia Tutwiler Prison for Women, 13 were employed in noncontact positions at the four male maximum-security institutions, and the remaining 22 were employed at the other institutions operated by the Alabama Board of Corrections. Because most of Alabama's prisoners are held at the four maximum-security male penitentiaries, 336 of the 435 correctional counselor jobs were in those institutions, a majority of them concededly in the 'contact' classification.9 Thus, even though meeting the statutory height and weight requirements, women applicants could under Regulation 204 compete equally with men for only about 25% of the correctional counselor jobs available in the Alabama prison system.
II
7
In enacting Title VII, Congress required 'the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.' Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158. The District Court found that the minimum statutory height and weight requirements that applicants for employment as correctional counselors must meet constitute the sort of arbitrary barrier to equal employment opportunity that Title VII forbids.10 The appellants assert that the District Court erred both in finding that the height and weight standards discriminate against women, and in its refusal to find that, even if they do, these standards are justified as 'job related.'
8
The gist of the claim that the statutory height and weight requirements discriminate against women does not involve an assertion of purposeful discriminatory motive.11 It is asserted, rather, that these facially neutral qualification standards work in fact disproportionately to exclude women from eligibility for employment by the Alabama Board of Corrections. We dealt in Griggs v. Duke Power Co., supra and Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280, with similar allegations that facially neutral employment standards disproportionately excluded Negroes from employment, and those cases guide our approach here.
9
Those cases make clear that to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern. Once it is thus shown that the employment standards are discriminatory in effect, the employer must meet 'the burden of showing that any given requirement (has) . . . a manifest relationship to the employment in question.' Griggs v. Duke Power Co., supra, at 432, 91 S.Ct., at 854. If the employer proves that the challenged requirements are job related, the plaintiff may then show that other selection devices without a similar discriminatory effect would also 'serve the employer's legitimate interest in 'efficient and trustworthy workmanship." Albemarle Paper Co. v. Moody, supra, at 425, 95 S.Ct., at 2375, quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668.
10
Although women 14 years of age or older compose 52.75% of the Alabama population and 36.89% of its total labor force, they hold only 12.9% of its correctional counselor positions. In considering the effect of the minimum height and weight standards on this disparity in rate of hiring between the sexes, the District Court found that the 5$2$-requirement would operate to exclude 33.29% of the women in the United States between the ages of 18-79, while excluding only 1.28% of men between the same ages. The 120-pound weight restriction would exclude 22.29% of the women and 2.35% of the men in this age group. When the height and weight restrictions are combined, Alabama's statutory standards would exclude 41.13% of the female population while excluding less than 1% of the male population.12 Accordingly, the District Court found that Rawlinson had made out a prima facie case of unlawful sex discrimination.
11
The appellants argue that a showing of disproportionate impact on women based on generalized national statistics should not suffice to establish a prima facie case. They point in particular to Rawlinson's failure to adduce comparative statistics concerning actual applicants for correctional counselor positions in Alabama. There is no requirement, however, that a statistical showing of disproportionate impact must always be based on analysis of the characteristics of actual applicants. See Griggs v. Duke Power Co., supra, 401 U.S., at 430, 91 S.Ct., at 853. The application process might itself not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 365-367, 97 S.Ct. 1843, 1869-1871, 52 L.Ed.2d 396. A potential applicant could easily determine her height and weight and conclude that to make an application would be futile. Moreover, reliance on general population demographic data was not misplaced where there was no reason to suppose that physical height and weight characteristics of Alabama men and women differ markedly from those of the national population.
12
For these reasons, we cannot say that the District Court was wrong in holding that the statutory height and weight standards had a discriminatory impact on women applicants. The plaintiffs in a case such as this are not required to exhaust every possible source of evidence, if the evidence actually presented on its face conspicuously demonstrates a job requirement's grossly discriminatory impact. If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own. In this case no such effort was made.13
B
13
We turn, therefore, to the appellants' argument that they have rebutted the prima facie case of discrimination by showing that the height and weight requirements are job related. These requirements, they say, have a relationship to strength, a sufficient but unspecified amount of which is essential to effective job performance as a correctional counselor. In the District Court, however, the appellants produced no evidence correlating the height and weight requirements with the requisite amount of strength thought essential to good job performance. Indeed, they failed to offer evidence of any kind in specific justification of the statutory standards.14
14
If the job-related quality that the appellants identify is bona fide, their purpose could be achieved by adopting and validating a test for applicants that measures strength directly.15 Such a test, fairly administered, would fully satisfy the standards of Title VII because it would be one that 'measure(s) the person for the job and not the person in the abstract.' Griggs v. Duke Power Co., 401 U.S., at 436, 91 S.Ct., at 856. But nothing in the present record even approaches such a measurement.
15
For the reasons we have discussed, the District Court was not in error in holding that Title VII of the Civil Rights Act of 1964, as amended, prohibits application of the statutory height and weight requirements to Rawlinson and the class she represents.
III
16
Unlike the statutory height and weight requirements, Regulation 204 explicitly discriminates against women on the basis of their sex.16 In defense of this overt discrimination, the appellants rely on § 703(e) of Title VII, 42 U.S.C. § 2000e-2(e), which permits sex-based discrimination 'in those certain instances where . . . sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.'
17
The District Court rejected the bona-fideoccupational-qualification (bfoq) defense, relying on the virtually uniform view of the federal courts that § 703(e) provides only the narrowest of exceptions to the general rule requiring equality of employment opportunities. This view has been variously formulated. In Diaz v. Pan American World Airways, 442 F.2d 385, 388, the Court of Appeals for the Fifth Circuit held that 'discrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively.' (Emphasis in original.) In an earlier case, Weeks v. Southern Bell Telephone and Telegraph Co., 5 Cir., 408 F.2d 228, 235, the same court said that an employer could rely on the bfoq exception only by proving 'that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.' See also Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613. But whatever the verbal formulation, the federal courts have agreed that it is impermissible under Title VII to refuse to hire an individual woman or man on the basis of stereotyped characterizations of the sexes,17 and the District Court in the present case held in effect that Regulation 204 is based on just such stereotypical assumptions.
18
We are persuaded by the restrictive language of § 703(e), the relevant legislative history,18 and the consistent interpretation of the Equal Employment Opportunity Commission19 that the bfoq exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex.20 In the particular factual circumstances of this case, however, we conclude that the District Court erred in rejecting the State's contention that Regulation 204 falls within the narrow ambit of the bfoq exception.
19
The environment in Alabama's penitentiaries is a peculiarly inhospitable one for human beings of whatever sex. Indeed, a Federal District Court has held that the conditions of confinement in the prisons of the State, characterized by 'rampant violence' and a 'jungle atmosphere,' are constitutionally intolerable. Pugh v. Locke, 406 F.Supp. 318, 325 (MD Ala.). The record in the present case shows that because of inadequate staff and facilities, no attempt is made in the four maximum-security male penitentiaries to classify or segregate inmates according to their offense or level of dangerousness a procedure that, according to expert testimony, is essential to effective penological administration. Consequently, the estimated 20% of the male prisoners who are sex offenders are scattered throughout the penitentiaries' dormitory facilities.
20
In this environment of violence and disorganization, it would be an oversimplification to characterize Regulation 204 as an exercise in 'romantic paternalism.' Cf. Frontiero v. Richardson, 411 U.S. 677, 684, 93 S.Ct. 1764, 1769, 36 L.Ed.2d 583. In the usual case, the argument that a particular job is too dangerous for women may appropriately be met by the rejoinder that it is the purpose of Title VII to allow the individual woman to make that choice for herself.21 More is at stake in this case, however, than an individual woman's decision to weigh and accept the risks of employment in a 'contact' position in a maximum-security male prison.
21
The essence of a correctional counselor's job is to maintain prison security. A woman's relative ability to maintain order in a male, maximum-security, unclassified penitentiary of the type Alabama now runs could be directly reduced by her womanhood. There is a basis in fact for expecting that sex offenders who have criminally assaulted women in the past would be moved to do so again if access to women were established within the prison. There would also be a real risk that other inmates, deprived of a normal heterosexual environment, would assault women guards because they were women.22 In a prison system where violence is the order of the day, where inmate access to guards is facilitated by dormitory living arrangements, where every institution is understaffed, and where a substantial portion of the inmate population is composed of sex offenders mixed at random with other prisoners, there are few visible deterrents to inmate assaults on women custodians.
22
Appellee Rauwlinson's own expert testified that dormitory housing for aggressive inmates poses a greater security problem than single-cell lockups, and further testified that it would be unwise to use women as guards in a prison where even 10% of the inmates had been convicted of sex crimes and were not segregated from the other prisoners.23 The likelihood that inmates would assault a woman because she was a woman would pose a real threat not only to the victim of the assault but also to the basic control of the penitentiary and protection of its inmates and the other security personnel. The employee's very womanhood would thus directly undermine her capacity to provide the security that is the essence of a correctional counselor's responsibility.
23
There was substantial testimony from experts on both sides of this litigation that the use of women as guards in 'contact' positions under the existing conditions in Alabama maximum-security male penitentiaries would pose a substantial security problem, directly linked to the sex of the prison guard. On the basis of that evidence, we conclude that the District Court was in error in ruling that being male is not a bona fide occupational qualification for the job of correctional counselor in a 'contact' position in an Alabama male maximum-security penitentiary.24
24
The judgment is accordingly affirmed in part and reversed in part, and the case is remanded to the District Court for further proceedings consistent with this opinion.
25
It is so ordered.
26
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, concurring in the result and concurring in part.
27
I agree with, and join, Parts I and III of the Court's opinion in this case and with its judgment. While I also agree with the Court's conclusion in Part II of its opinion, holding that the District Court was 'not in error' in holding the statutory height and weight requirements in this case to be invalidated by Title VII, ante, at 332, the issues with which that Part deals are bound to arise so frequently that I feel obliged to separately state the reasons for my agreement with its result. I view affirmance of the District Court in this respect as essentially dictated by the peculiarly limited factual and legal justifications offered below by appellants on behalf of the statutory requirements. For that reason, I do not believe and do not read the Court's opinion as holding that all or even many of the height and weight requirements imposed by States on applicants for a multitude of law enforcement agency jobs are pretermitted by today's decision.
28
I agree that the statistics relied upon in this case are sufficient, absent rebuttal, to sustain a finding of a prima facie violation of § 703(a)(2), in that they reveal a significant discrepancy between the numbers of men, as opposed to women, who are automatically disqualified by reason of the height and weight requirements. The fact that these statistics are national figures of height and weight, as opposed to statewide or pool-of-labor-force statistics, does not seem to me to require us to hold that the District Court erred as a matter of law in admitting them into evidence. See Hamling v. United States, 418 U.S. 87, 108, 124-125, 94 S.Ct. 2887, 2902, 2911-2912, 41 L.Ed.2d 590 (1974); cf. Zenith Radio Corp. v. Hazeltine, 395 U.S. 100, 123-125, 89 S.Ct. 1562, 1576-1578, 23 L.Ed.2d 129 (1969). It is for the District Court, in the first instance, to determine whether these statistics appear sufficiently probative of the ultimate fact in issue whether a given job qualification requirement has a disparate impact on some group protected by Title VII. Hazelwood School District v. United States, 433 U.S., 299, at 312-313, 97 S.Ct. 2736, at 2744, 53 L.Ed.2d 768; see Hamling v. United States, supra, 418 U.S., at 108, 124-125, 94 S.Ct., at 2902, 2911-2912; Mayor v. Educational Equality League, 415 U.S. 605, 621 n. 20, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974); see also McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); United States v. Yellow Cab Co., 338 U.S. 338, 340-342, 70 S.Ct. 177, 178-179, 94 L.Ed. 150 (1949). In making this determination, such statistics are to be considered in light of all other relevant facts and circumstances. Cf. Teamsters v. United States, 431 U.S. 324, 340, 97 S.Ct. 1843, 1857, 52 L.Ed.2d 396 (1977). The statistics relied on here do not suffer from the obvious lack of relevancy of the statistics relied on by the District Court in Hazelwood School District v. United States, 433 U.S., at 308, 97 S.Ct., at 2742. A reviewing court cannot say as a matter of law that they are irrelevant to the contested issue or so lacking in reliability as to be inadmissible.
29
If the defendants in a Title VII suit believe there to be reason to discredit plaintiffs' statistics that does not appear on their face, the opportunity to challenge them is available to the defendants just as in any other lawsuit. They may endeavor to impeach the reliability of the statistical evidence, they may offer rebutting evidence, or they may disparage in arguments or in briefs the probative weight which the plaintiffs' evidence should be accorded. Since I agree with the Court that appellants made virtually no such effort, ante, at 331, I also agree with it that the District Court cannot be said to have erred as a matter of law in finding that a prima facie case had been made out in the instant case.
30
While the District Court's conclusion is by no means required by the proffered evidence, I am unable to conclude that the District Court's finding in that respect was clearly erroneous. In other cases there could be different evidence which could lead a district court to conclude that height and weight are in fact an accurate enough predictor of strength to justify, under all the circumstances, such minima. Should the height and weight requirements be found to advance the job-related qualification of strength sufficiently to rebut the prima facie case, then, under our cases, the burden would shift back to appellee Rawlinson to demonstrate that other tests, without such disparate effect, would also meet that concern. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). But, here, the District Court permissible concluded that appellants had not shown enough of a nexus even to rebut the inference.
31
Appellants, in order to rebut the prima facie case under the statute, had the burden placed on them to advance job-related reasons for the qualification. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). This burden could be shouldered by offering evidence or by making legal arguments not dependent on any new evidence. The District Court was confronted, however, with only one suggested job-related reason for the qualification that of strength. Appellants argued only the job-relatedness of actual physical strength; they did not urge that an equally job-related qualification for prison guards is the appearance of strength. As the Court notes, the primary job of correctional counselor in Alabama prisons 'is to maintain security and control of the inmates . . .,' ante, at 326, a function that I at least would imagine is aided by the psychological impact on prisoners of the presence of tall and heavy guards. If the appearance of strength had been urged upon the District Court here as a reason for the height and weight minima, I think that the District Court would surely have been entitled to reach a different result than it did. For, even if not perfectly correlated, I would think that Title VII would not preclude a State from saying that anyone under 5$2$ or 120 pounds, no matter how strong in fact, does not have a sufficient appearance of strength to be a prison guard.
32
But once the burden has been placed on the defendant, it is then up to the defendant to articulate the asserted job-related reasons underlying the use of the minima. McDonnell Douglas Corp. v. Green, supra, at 802, 93 S.Ct., at 1824; Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971); Albemarle Paper Co. v. Moody, supra, 422 U.S., at 425, 95 S.Ct., at 2375. Because of this burden, a reviewing court is not ordinarily justified in relying on arguments in favor of a job qualification that were not first presented to the trial court. Cf. United States v. Arnold, Schwinn & Co., 388 U.S. 365, 374 n. 5, 87 S.Ct. 1856, 1863, 18 L.Ed.2d 1249 (1967); Thomas v. Taylor, 224 U.S. 73, 84, 32 S.Ct. 403, 406, 56 L.Ed. 673 (1912); Bell v. Bruen, 1 How. 169, 187, 11 L.Ed. 89 (1843). As appellants did not even present the 'appearance of strength' contention to the District Court as an asserted job-related reason for the qualification requirements, I agree that their burden was not met. The District Court's holding thus did not deal with the question of whether such an assertion could or did rebut appellee Rawlinson's prima facie case.
33
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring in part and dissenting in part.
34
I agree entirely with the Court's analysis of Alabama's height and weight requirements for prison guards, and with its finding that these restrictions discriminate on the basis of sex in violation of Title VII. Accordingly, I join Parts I and II of the Court's opinion. I also agree with much of the Court's general discussion in Part III of the bona-fide-occupationalqualification exception contained in § 703(e) of Title VII.1 The Court is unquestionably correct when it holds 'that the bfoq exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex.' Ante, at 334. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S.Ct. 496, 497, 27 L.Ed.2d 613 (1971) (Marshall, J., concurring). I must, however, respectfully disagree with the Court's application of the bfoq exception in this case.
35
The Court properly rejects two proffered justifications for denying women jobs as prison guards. It is simply irrelevant here that a guard's occupation is dangerous and that some women might be unable to protect themselves adequately. Those themes permeate the testimony of the state officials below, but as the Court holds, 'the argument that a particular job is too dangerous for women' is refuted by the 'purpose of Title VII to allow the individual woman to make that choice for herself.' Ante, at 335. Some women, like some men, undoubtedly are not qualified and do not wish to serve as prison guards, but that does not justify the exclusion of all women from this employment opportunity. Thus, '(i)n the usual case,' ibid., the Court's interpretation of the bfoq exception would mandate hiring qualified women for guard jobs in maximum-security institutions. The highly successful experiences of other States allowing such job opportunities, see briefs for the States of California and Washington, as amici curiae, confirm that absolute disqualification of women is not, in the words of Title VII, 'reasonably necessary to the normal operation' of a maximum security prison.
36
What would otherwise be considered unlawful discrimination against women is justified by the Court, however, on the basis of the 'barbaric and inhumane' conditions in Alabama prisons, conditions so bad that state officials have conceded that they violate the Constitution. See Pugh v. Locke, 406 F.Supp. 318, 329, 331 (MD Ala.1976). To me, this analysis sounds distressingly like saying two wrongs make a right. It is refuted by the plain words of § 703(e). The statute requires that a bfoq be 'reasonably necessary to the normal operation of that particular business or enterprise.' But no governmental 'business' may operate 'normally' in violation of the Constitution. Every action of government is constrained by constitutional limitations. While those limits may be violated more frequently than we would wish, no one disputes that the 'normal operation' of all government functions takes place within them. A prison system operating in blatant violation of the Eighth Amendment is an exception that should be remedied with all possible speed, as Judge Johnson's comprehensive order in Puch v. Locke, supra, is designed to do. In the meantime, the existence of such violations should not be legitimatized by calling them 'normal.' Nor should the Court accept them as justifying conduct that would otherwise violate a statute intended to remedy age-old discrimination.
37
The Court's error in statutory construction is less objectionable, however, than the attitude it displays toward women. Though the Court recognizes that possible harm to women guards is an unacceptable reason for disqualifying women, it relies instead on an equally speculative threat to prison discipline supposedly generated by the sexuality of female guards. There is simply no evidence in the record to show that women guards would create any danger to security in Alabama prisons significantly greater than that which already exists. All of the dangers with one exception discussed below are inherent in a prison setting, whatever the gender of the guards.
38
The Court first sees women guards as a threat to security because 'there are few visible deterrents to inmate assaults on women custodians.' Ante, at 336. In fact, any prison guard is constantly subject to the threat of attack by inmates, and 'invisible' deterrents are the guard's only real protection. No prison guard relies primarily on his or her ability to ward off an inmate attack to maintain order. Guards are typically unarmed and sheer numbers of inmates could overcome the normal complement. Rather, like all other law enforcement officers, prison guards must rely primarily on the moral authority of their office and the threat of future punishment for miscreants. As one expert testified below, common sense, fairness, and mental and emotional stability are the qualities a guard needs to cope with the dangers of the job. App. 81. Well qualified and properly trained women, no less than men, have these psychological weapons at their disposal.
39
The particular severity of discipline problems in the Alabama maximum-security prisons is also no justification for the discrimination sanctioned by the Court. The District Court found in Pugh v. Locke, supra, that guards 'must spend all their time attempting to maintain control or to protect themselves.' 406 F.Supp., at 325. If male guards face an impossible situation, it is difficult to see how women could make the problem worse, unless one relies on precisely the type of generalized bias against women that the Court agrees Title VII was intended to outlaw. For example, much of the testimony of appellants' witnesses ignores individual differences among members of each sex and reads like 'ancient canards about the proper role of women.' Phillips v. Martin Marietta Corp., 400 U.S., at 545, 91 S.Ct., at 498. The witnesses claimed that women guards are not strict disciplinarians; that they are physically less capable of protecting themselves and subduing unruly inmates; that inmates take advantage of them as they did their monthers, while male guards are strong father figures who easily maintain discipline, and so on.2 Yet the record shows that the presence of women guards has not led to a single incident amounting to a serious breach of security in any Alabama institution.3 And, in any event, '(g)uards rarely enter the cell blocks and dormitories,' Pugh v. Locke, 406 F.Supp., at 325, where the danger of inmate attacks is the greatest.
40
It appears that the real disqualifying factor in the Court's view is '(t)he employee's very womanhood.' Ante, at 336. The Court refers to the large number of sex offenders in Alabama prisons, and to '(t)he likelihood that inmates would assault a woman because she was a woman.' Ibid. In short, the fundamental justification for the decision is that women as guards will generate sexual assaults. With all respect, this rationale regrettably perpetuates one of the most insidious of the old myths about women that women, wittingly or not, are seductive sexual objects. The effect of the decision, made I am sure with the best of intentions, is to punish women because their very presence might provoke sexual assaults. It is women who are made to pay the price in lost job opportunities for the threat of depraved conduct by prison inmates. Once again, '(t)he pedestal upon which women have been placed has . . ., upon closer inspection, been revealed as a cage.' Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 20, 95 Cal.Rptr. 329, 341, 485 P.2d 529, 541 (1971). It is particularly ironic that the cage is erected here in response to feared misbehavior by imprisoned criminals.4
41
The Court points to no evidence in the record to support the asserted 'likelihood that inmates would assault a woman because she was a woman.' Ante, at 336. Perhaps the Court relies upon common sense, or 'innate recognition.' Brief for Appellants 51. But the danger in this emotionally laden context is that common sense will be used to mask the "romantic paternalism" and persisting discriminatory attitudes that the Court properly eschews. Ante, at 335. To me, the only matter of innate recognition is that the incidence of sexually motivated attacks on guards will be minute compared to the 'likelihood that inmates will assault' a guard because he or she is a guard.
42
The proper response to inevitable attacks on both female and male guards is not to limit the employment opportunities of lawabiding women who wish to contribute to their community, but to take swift and sure punitive action against the inmate offenders. Presumably, one of the goals of the Alabama prison system is the eradication of inmates' antisocial behavior patterns so that prisoners will be able to live one day in free society. Sex offenders can begin this process by learning to relate to women guards in a socially acceptable manner. To deprive women of job opportunities because of the threatened behavior of convicted criminals is to turn our social priorities upside down.5
43
Although I do not countenance the sex discrimination condoned by the majority, it is fortunate that the Court's decision is carefully limited to the facts before it. I trust the lower courts will recognize that the decision was impelled by the shockingly inhuman conditions in Alabama prisons, and thus that the 'extremely narrow (bfoq) exception' recognized here, ante, at 334, will not be allowed 'to swallow the rule' against sex discrimination. See Phillips v. Martin Marietta Corp., 400 U.S., at 545, 91 S.Ct., at 498. Expansion of today's decision beyond its narrow factual basis would erect a serious roadblock to economic equality for women.
1
The appellants sought to raise for the first time in their brief on the merits the claim that Congress acted unconstitutionally in extending Title VII's coverage to state governments. See the Equal Employment Opportunity Act of 1972, 86 Stat. 103, effective date, Mar. 24, 1972, 42 U.S.C. §§ 2000e(a), (b), (f), (h) (1970 ed., Supp. V). Not having been raised in the District Court, that issue is not before us. See Adickes v. Kress & Co., 398 U.S. 144, 147 n. 2, 90 S.Ct. 1598, 1602, 26 L.Ed.2d 142; Irvine v. California, 347 U.S. 128, 129, 74 S.Ct. 381, 98 L.Ed. 561.
2
The statute establishes minimum physical standards for all law enforcement officers. In pertinent part, it provides:
'(d) Physical qualifications. The applicant shall be not less than five feet two inches nor more than six feet ten inches in height, shall weigh not less than 120 pounds nor more than 300 pounds and shall be certified by a licensed physician designated as satisfactory by the appointing authority as in good health and physically fit for the performance of his duties as a law-enforcement officer. The commission may for good cause shown permit variances from the physical qualifications prescribed in this subdivision.' Ala.Code, Tit. 55, § 373(109) (Supp. 1973).
3
See 42 U.S.C. § 2000e-5(f) (1970 ed., Supp. V).
4
A second plaintiff named in the complaint was Brenda Mieth, who, on behalf of herself and others similarly situated, challenged the 5$9$ height and 160-pound weight requirements for the position of Alabama state trooper as violative of the Equal Protection Clause. The District Court upheld her challenge, and the defendants did not appeal from that aspect of the District Court's judgment.
5
Although a single-judge District Court could have considered Rawlinson's Title VII claims, her coplaintiff's suit rested entirely on the Constitution. See n. 4, supra. Given the similarity of the underlying issues in the two cases, it was not inappropriate to convene a three-judge court to deal with the constitutional and statutory issues presented in the complaint. When a properly convened three-judge court enjoins the operation of a state law on federal statutory grounds, an appeal to this Court from that judgment lies under 28 U.S.C. § 1253. See Brotherhood of Locomotive Engineers v. Chicago, R. I. & P. R. Co., 382 U.S. 423, 86 S.Ct. 594, 15 L.Ed.2d 501; Philbrook v. Glodgett, 421 U.S. 707, 95 S.Ct. 1893, 44 L.Ed.2d 525.
6
Administrative Regulation 204 provides in pertinent part as follows:
'I. GENERAL
'1. The purpose of this regulation is to establish policy and procedure for identifying and designating institutional Correctional Counselor I positions which require selective certification for appointment of either male or female employees from State Personnel Department registers.
'II. POLICY
'4. All Correctional Counselor I positions will be evaluated to identify and designate those which require selective certification for appointment of either a male or female employee. Such positions must fall within a bona fide occupational qualification stated in Title 4(2)-2000c of the United States Code . . ..
'5. Selective certification from the Correctional Counselor Trainee register will be requested of the State Personnel Department whenever a position is being filled which has been designated for either a male or female employee only.
'III. PROCEDURE
'8. Institutional Wardens and Directors will identify each institutional Correctional Counselor I position which they feel requires selective certification and will request that it be so designated in writing to the Associate Commissioner for Administration for his review, evaluation, and submission to the Commissioner for final decision.
'9. The request will contain the exact duties and responsibilities of the position and will utilize and identify the following criteria to establish that selective certification is necessary;
'A. That the presence of the opposite sex would cause disruption of the orderly running and security of the institution.
'B. That the position would require contact with the inmates of the opposite sex without the presence of others.
'C. That the position would require patroling dormitories, restrooms, or showers while in use, frequently, during the day or night.
'D. That the position would require search of inmates of the opposite sex on a regular basis.
'E. That the position would require that the Correctional Counselor Trainee not be armed with a firearm.
'10. All institutional Correctional Counselor I positions which are not approved for selective certification will be filled from Correctional Counselor Trainee registers without regard to sex.'
Although Regulation 204 is not limited on its face to contact positions in maximum-security institutions, the District Court found that it did not 'preclude . . . (women) from serving in contact positions in the all-male institutions other than the penitentiaries.' 418 F.Supp., at 1176. Appellants similarly defended the regulation as applying only to maximum-security facilities.
7
Note, The Sexual Segregation of American Prisons, 82 Yale L.J. 1229 (1973).
8
The official job description for a correctional counselor position emphasizes counseling as well as security duties; the District Court found: '(C)orrectional counselors are persons who are commonly referred to as prison guards. Their duties primarily involve security rather than counseling.' 418 F.Supp. 1169, 1175.
9
At the time of the trial the Board of Corrections had not yet classified all of its correctional counselor positions in the maximum-security institutions according to the criteria established in Regulation 204; consequently evidence of the exact number of 'male only' jobs within the prison system was not available.
10
Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a) (1970 ed. and Supp. V), provides:
'(a) Employer practices. It shall be an unlawful employment practice for an employer
'(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
'(2) to limit, segregate, or classify his employees or applicants for employment in any was 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.'
11
See International Brotherhood of Teamsters v. United States 431 U.S. 324, 335-336 n. 15, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 396.
12
Affirmatively stated, approximately 99.76% of the men and 58.87% of the women meet both these physical qualifications. From the separate statistics on height and weight of males it would appear that after adding the two together and allowing for some overlap the result would be to exclude between 2.35% and 3.63% of males from meeting Alabama's statutory height and weight minima. None of the parties has challenged the accuracy of the District Court's computations on this score, however, and the discrepancy is in any event insignificant in light of the gross disparity between the female and male exclusions. Even under revised computations the disparity would greatly exceed the 34% to 12% disparity that served to invalidate the high school diploma requirement in the Griggs case. 401 U.S., at 430, 91 S.Ct., at 853.
13
The height and weight statute contains a waiver provision that the appellants urge saves it from attack under Title VII. See n. 2, supra. The District Court noted that a valid waiver provision might indeed have that effect, but found that applicants were not informed of the waiver provision, and that the Board of Corrections had never requested a waiver from the Alabama Peace Officers' Standards and Training Commission. The court therefore correctly concluded that the waiver provision as administered failed to overcome the discriminatory effect of the statute's basic provisions.
14
In what is perhaps a variation on their constitutional challenge to the validity of Title VII itself, see n. 1, supra, the appellants contend that the establishment of the minimum height and weight standards by statute requires that they be given greater deference than is typically given private employer-established job qualifications. The relevant legislative history of the 1972 amendments extending Title VII to the States as employers does not, however, support such a result. Instead, Congress expressly indicated the intent that the same Title VII principles be applied to governmental and private employers alike. See H.R.Rep.No.92-238, p. 17 (1971); S.Rep.No.92-415, p. 10 (1971); U.S. Code Cong. & Admin.News 1972, p. 2137. See also Schaeffer v. San Diego Yellow Cabs, 462 F.2d 1002 (CA9). Thus for both private and public employers, '(t)he touchstone is business necessity,' Griggs, 401 U.S., at 431, 91 S.Ct., at 853; a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge.
15
Cf. EEOC Guidelines on Employee Selection Procedures, 29 CFR § 1607 (1976). See also Washington v. Davis, 426 U.S. 229, 246-247, 96 S.Ct. 2040, 2050-2051, 48 L.Ed.2d 597; Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280; Officers for Justice v. civil Service Commission, 395 F.Supp. 378 (ND Cal.).
16
By its terms Regulation 204 applies to contact positions in both male and female institutions. See n. 6, supra. The District Court found, however, that 'Regulation 204 is the administrative means by which the (Board of Corrections') policy of not hiring women as correctional counselors in contact positions in all-male penitentiaries has been implemented.' 418 F.Supp., at 1176. The Regulation excludes women from consideration for approximately 75% of the available correctional counselor jobs in the Alabama prison system.
17
See, e. g., Gillin v. Federal Paper Board Co., 479 F.2d 97 (CA2); Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (CA3); Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (CA9); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (CA7); Meadows v. Ford Motor Co., 62 F.R.D. 98 (WD Ky.), modified on other grounds, 510 F.2d 939 (CA6). See also Jones Metal Products Co. v. Walker, 29 Ohio St.2d 173, 281 N.E.2d 1; EEOC Guidelines on Discrimination Because of Sex, 29 CFR § 1604 (1976).
18
See Interpretative Memorandum of Senators Clark and Case, 110 Cong.Rec. 7213 (1964).
19
The EEOC issued guidelines on sex discrimination in 1965 reflecting its position that 'the bona fide occupational qualification as to sex should be interpreted narrowly.' 29 CFR § 1604.2(a). It has adhered to that principle consistently, and its construction of the statute can accordingly be given weight. See Griggs v. Duke Power Co., 401 U.S., at 434, 91 S.Ct., at 855; McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 279-280, 96 S.Ct. 2574, 2577-2578, 49 L.Ed.2d 493.
20
In the case of a state employer, the bfoq exception would have to be interpreted at the very least so as to conform to the Equal Protection Clause of the Fourteenth Amendment. The parties do not suggest, however, that the Equal Protection Clause requires more rigorous scrutiny of a State's sexually discriminatory employment policy than does Title VII. There is thus no occasion to give independent consideration to the District Court's ruling that Regulation 204 violates the Fourteenth Amendment as well as Title VII.
21
See, e. g., Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228, 232-236 (CA5); Bowe v. Colgate-Palmolive Co., supra, 416 F.2d, at 717-718, Rosenfeld v. Southern Pacific Co., supra.
22
The record contains evidence of an attack on a female clerical worker in an Alabama prison, and of an incident involving a woman student who was taken hostage during a visit to one of the maximum-security institutions.
23
Alabama's penitentiaries are evidently not typical. Appellee Rawlinson's two experts testified that in a normal, relatively stable maximum-security prison characterized by control over the inmates, reasonable living conditions, and segregation of dangerous offenders women guards could be used effectively and beneficially. Similarly, an amicus brief filed by the State of California attests to that State's success in using women guards in all-male penitentiaries.
24
The record shows, by contrast, that Alabama's minimum-security facilities, such as work-release centers, are recognized by their inmates as privileged confinement situations not to be lightly jeopardized by disobeying applicable rules of conduct. Inmates assigned to these institutions are thought to be the 'cream of the crop' of the Alabama prison population.
1
Section 703(e), 42 U.S.C. § 2000e-2(e), provides in pertinent part:
'(1) it shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of . . . sex . . . in those certain instain instances where . . . sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . ..'
2
See, e. g., App. 111-112, 117-118, 144, 147, 151-153, 263-264, 290-292, 301-302. The State Commissioner of Corrections summed up these prejudices in his testimony:
'Q Would a male that is 5$6$, 140 lbs., be able to perform the job of Correctional Counselor in an all male institution?
'A Well, if he qualifies otherwise, yes.
'Q But a female 5$6$, 140 lbs., would not be able to perform all the duties?
'A No.
'Q What do you use as a basis for that opinion?
'A The innate intention between a male and a female. The physical capabilities, the emotions that go into the psychic make-up of a female vs. the psychic make-up of a male. The attitude of the rural type inmate we have vs. that of a woman. The superior feeling that a man has, historically, over that of a female.' Id., at 153.
Strikingly similar sentiments were expressed a century ago by a Justice of this Court in a case long since discredited:
'I am not prepared to say that it is one of (women's) fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. . . . (I)n my opinion, in view of the particular characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.' Bradwell v. Illinois, 16 Wall. 130, 139, 142, 21 L.Ed. 442 (1873) (Bradley, J., concurring).
3
The Court refers to two incidents involving potentially dangerous attacks on women in prisons. Ante, at 335-336, n. 22. But these did not involve trained corrections officers; one victim was a clerical worker and the other a student visiting on a tour.
4
The irony is multiplied by the fact that enormous staff increases are required by the District Court's order in Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976). This necessary hiring would be a perfect opportunity for appellants to remedy their past discrimination against women, but instead the Court's decision permits that policy to continue. Moreover, once conditions are improved in accordance with the Pugh order, the problems that the Court perceives with women guards will be substantially alleviated.
5
The appellants argue that restrictions on employment of women are also justified by consideration of inmates' privacy. It is strange indeed to hear state officials who have for years been violating the most basic principles of human decency in the operation of their prisons suddenly become concerned about inmate privacy. It is stranger still that these same officials allow women guards in contact positions in a number of nonmaximum-security institutions, but strive to protect inmates' privacy in the prisons where personal freedom is most severely restricted. I have no doubt on this record that appellants' professed concern is nothing but a feeble excuse for discrimination.
As the District Court suggested, it may well be possible, once a constitutionally adequate staff is available, to rearrange work assignments so that legitimate inmate privacy concerns are respected without denying jobs to women. Finally, if women guards behave in a professional manner at all times, they will engender reciprocal respect from inmates, who will recognize that their privacy is being invaded no more than if a woman doctor examines them. The suggestion implicit in the privacy argument that such behavior is unlikely on either side is an insult to the professionalism of guards and the dignity of inmates.
| 12
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433 U.S. 299
97 S.Ct. 2736
53 L.Ed.2d 768
HAZELWOOD SCHOOL DISTRICT et al., Petitioners,v.UNITED STATES.
No. 76-255.
Argued April 27, 1977.
Decided June 27, 1977.
Syllabus
The United States brought this action against petitioners, the Hazelwood, Mo., School District, located in St. Louis County, and various officials, alleging that they were engaged in a 'pattern or practice' of teacher employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, which became applicable to petitioners as public employers on March 24, 1972. The District Court following trial ruled that the Government had failed to establish a pattern or practice of discrimination. The Court of Appeals reversed, in part on the ground that the trial court's analysis of statistical data rested on an irrelevant comparison of Negro teachers to Negro pupils in Hazelwood, instead of a comparison of Negro teachers in Hazelwood to Negro teachers in the relevant labor market area, which it found to consist of St. Louis County and the city of St. Louis, where 15.4% of the teachers are Negro. In the 1972-1973 and 1973-1974 school years only 1.4% and 1.8%, respectively, of Hazelwood's teachers were Negroes, and this statistical disparity, particularly when viewed against the background of Hazelwood's teacher hiring procedures, was held to constitute a prima facie case of a pattern or practice of racial discrimination. Petitioners contend that the statistical data on which the Court of Appeals relied cannot sustain a finding of a violation of Title VII. Held: The Court of Appeals erred in disregarding the statistical data in the record dealing with Hazelwood's hiring after it became subject to Title VII and the court should have remanded the case to the District Court for further findings as to the relevant labor market area and for an ultimate determination whether Hazelwood has engaged in a pattern or practice of employment discrimination since March 24, 1972. Though the Court of Appeals was correct in the view that a proper comparison was between the racial composition of Hazelwood's teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market, it erred in disregarding the possibility that the prima facie statistical proof in the record might at the trial court level be rebutted by statistics dealing with Hazelwood's post-Act hiring practices such as with respect to the number of Negroes hired compared to the total number of Negro applicants. For, once a prima facie case has been established by statistical work-force disparities, the employer must be given an opportunity to show that 'the claimed discriminatory pattern is a product of pre-Act hiring rather than unlawful post-Act discrimination,' International Brotherhood of Teamsters v. United States, 431 U.S. 324, 360, 97 S.Ct. 1843, 1857, 52 L.Ed.2d 396 and n. 17. The record showed, but the Court of Appeals in its conclusions ignored, that for the two-year period 1972-1974 3.7% of the new teachers hired in Hazelwood were Negroes. The court accepted the Government's argument that the relevant labor market was St. Louis County and the city of St. Louis without considering petitioners' contention that St. Louis County alone (where the figure was 5.7%) was the proper area because the city of St. Louis attempts to maintain a 50% Negro teaching staff. The difference between the figures may well be significant since the disparity between 3.7% and 5.7% may be sufficiently small to weaken the Government's other proof, while the disparity between 3.7% and 15.4% may be sufficiently large to reinforce it. In determining what figures provide the most accurate basis for comparison to the hiring figures at Hazelwood numerous other factors, moreover, must also be evaluated by the trial court. Pp. 306-313.
534 F.2d 805, vacated and remanded.
William H. Allen, Washington, D. C., for petitioners.
Lawrence G. Wallace, Washington, D. C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner Hazelwood School District covers 78 square miles in the northern part of St. Louis County, Mo. In 1973 the Attorney General brought this lawsuit against Hazelwood and various of its officials, alleging that they were engaged in a 'pattern or practice' of employment 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. (1970 ed. and Supp. V).1 The complaint asked for an injunction requiring Hazelwood to cease its discriminatory practices, to take affirmative steps to obtain qualified Negro faculty members, and to offer employment and give backpay to victims of past illegal discrimination.
2
Hazelwood was formed from 13 rural school districts between 1949 and 1951 by a process of annexation. By the 1967-1968 school year, 17,550 students were enrolled in the district, of whom only 59 were Negro; the number of Negro pupils increased to 576 of 25,166 in 1972-1973, a total of just over 2%.
3
From the beginning, Hazelwood followed relatively unstructured procedures in hiring its teachers. Every person requesting an application for a teaching position was sent one, and completed applications were submitted to a central personnel office, where they were kept on file.2 During the early 1960's the personnel office notified all applicants whenever a teaching position became available, but as the number of applications on file increased in the late 1960's and early 1970's, this practice was no longer considered feasible. The personnel office thus began the practice of selecting anywhere from 3 to 10 applicants for interviews at the school where the vacancy existed. The personnel office did not substantively screen the applicants in determining which of them to send for interviews, other than to ascertain that each applicant, if selected, would be eligible for state certification by the time he began the job. Generally, those who had most recently submitted applications were most likely to be chosen for interviews.3
4
Interviews were conducted by a department chairman, program coordinator, or the principal at the school where the teaching vacancy existed. Although those conducting the interviews did fill out forms rating the applicants in a number of respects, it is undisputed that each school principal possessed virtually unlimited discretion in hiring teachers for his school. The only general guidance given to the principals was to hire the 'most competent' person available, and such intangibles as 'personality, disposition, appearance, poise, voice, articulation, and ability to deal with people' counted heavily. The principal's choice was routinely honored by Hazelwood's Superintendent and the Board of Education.
5
In the early 1960's Hazelwood found it necessary to recruit new teachers, and for that purpose members of its staff visited a number of colleges and universities in Missouri and bordering States. All the institutions visited were predominantly white, and Hazelwood did not seriously recruit at either of the two predominantly Negro four-year colleges in Missouri.4 As a buyer's market began to develop for public school teachers, Hazelwood curtailed its recruiting efforts. For the 1971-1972 school year, 3,127 persons applied for only 234 teaching vacancies; for the 1972-1973 school year, there were 2,373 applications for 282 vacancies. A number of the applicants who were not hired were Negroes.5
6
Hazelwood hired its first Negro teacher in 1969. The number of Negro faculty members gradually increased in successive years: 6 of 957 in the 1970 school year; 16 of 1,107 by the end of the 1972 school year; 22 of 1,231 in the 1973 school year. By comparison, according to 1970 census figures, of more than 19,000 teachers employed in that year in the St. Louis area, 15.4% were Negro. That percentage figure included the St. Louis City School District, which in recent years has followed a policy of attempting to maintain a 50% Negro teaching staff. Apart from that school district, 5.7% of the teachers in the county were Negro in 1970.
7
Drawing upon these historic facts, the Government mounted its 'pattern or practice' attack in the District Court upon four different fronts. It adduced evidence of (1) a history of alleged racially discriminatory practices, (2) statistical disparities in hiring, (3) the standardless and largely subjective hiring procedures, and (4) specific instances of alleged discrimination against 55 unsuccessful Negro applicants for teaching jobs. Hazelwood offered virtually no additional evidence in response, relying instead on evidence introduced by the Government, perceived deficiencies in the Government's case, and its own officially promulgated policy 'to hire all teachers on the basis of training, preparation and recommendations, regardless of race, color or creed.'6
8
The District Court ruled that the Government had failed to establish a pattern or practice of discrimination. The court was unpersuaded by the alleged history of discrimination, noting that no dual school system had ever existed in Hazelwood. The statistics showing that relatively small numbers of Negroes were employed as teachers were found nonprobative, on the ground that the percentage of Negro pupils in Hazelwood was similarly small. The court found nothing illegal or suspect in the teacher-hiring procedures that Hazelwood had followed. Finally, the court reviewed the evidence in the 55 cases of alleged individual discrimination, and after stating that the burden of proving intentional discrimination was on the Government, it found that this burden had not been sustained in a single instance. Hence, the court entered judgment for the defendants. 392 F.Supp. 1276 (ED Mo.).
9
The Court of Appeals for the Eighth Circuit reversed. 534 F.2d 805. After suggesting that the District Court had assigned inadequate weight to evidence of discriminatory conduct on the part of Hazelwood before the effective date of Title VII,7 the Court of Appeals rejected the trial court's analysis of the statistical data as resting on an irrelevant comparison of Negro teachers to Negro pupils in Hazelwood. The proper comparison, in the appellate court's view, was one between Negro teachers in Hazelwood and Negro teachers in the relevant labor market area. Selecting St. Louis County and St. Louis City as the relevant area,8 the Court of Appeals compared the 1970 census figures, showing that 15.4% of teachers in that area were Negro, to the racial composition of Hazelwood's teaching staff. In the 1972-1973 and 1973-1974 school years, only 1.4% and 1.8%, respectively, of Hazelwood's teachers were Negroes. This statistical disparity, particularly when viewed against the background of the teacher-hiring procedures that Hazelwood had followed, was held to constitute a prima facie case of a pattern or practice of racial discrimination.
10
In addition, the Court of Appeals reasoned that the trial court had erred in failing to measure the 55 instances in which Negro applicants were denied jobs against the four-part standard for establishing a prima facie case of individual discrimination set out in this Court's opinion in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668.9 Applying that standard, the appellate court found 16 cases of individual discrimination,10 which 'buttressed' the statistical proof. Because Hazelwood had not rebutted the Government's prima facie case of a pattern or practice of racial discrimination, the Court of Appeals directed judgment for the Government and prescribed the remedial order to be entered.11
11
We granted certiorari, 429 U.S. 1037, 97 S.Ct. 730, 50 L.Ed.2d 747 to consider a substantial question affecting the enforcement of a pervasive federal law.
12
The petitioners primarily attack the judgment of the Court of Appeals for its reliance on 'undifferentiated work force statistics to find an unrebutted prima facie case of employment discrimination.'12 The question they raise, in short, is whether a basic component in the Court of Appeals' finding of a pattern or practice of discrimination the comparatively small percentage of Negro employees in Hazelwood's teaching staff was lacking in probative force.
13
This Court's recent consideration in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 of the role of statistics in pattern-or-practice suits under Title VII provides substantial guidance in evaluating the arguments advanced by the petitioners. In that case we stated that it is the Government's burden to 'establish by a preponderance of the evidence that racial discrimination was the (employer's) standard operating procedure the regular rather than the unusual practice.' Id., at 336, 97 S.Ct., at 1855. We also noted that statistics can be an important source of proof in employment discrimination cases, since
14
'absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of long-lasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though § 703(j) makes clear that Title VII imposes no requirement that a work force mirror the general population.' Id., at 340 n. 20, 97 S.Ct., at 1856 n.20.
15
See also Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450; Washington v. Davis, 426 U.S. 229, 241-242, 96 S.Ct. 2040, 2048-2049, 48 L.Ed.2d 597. Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination. Teamsters, supra, 431 U.S. at 339, 97 S.Ct., at 1856.
16
There can be no doubt, in light of the Teamsters case, that the District Court's comparison of Hazelwood's teacher work force to its student population fundamentally misconceived the role of statistics in employment discrimination cases. The Court of Appeals was correct in the view that a proper comparison was between the racial composition of Hazelwood's teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market.13 See Teamsters, supra, at 337-338, and n. 17, 97 S.Ct., at 1855, and n. 17. The percentage of Negroes on Hazelwood's teaching staff in 1972-1973 was 1.4% and in 1973-1974 it was 1.8% By contrast, the percentage of qualified Negro teachers in the area was, according to the 1970 census, at least 5.7%.14 Although these differences were on their face substantial, the Court of Appeals erred in substituting its judgment for that of the District Court and holding that the Government had conclusively proved its 'pattern or practice' lawsuit.
17
The Court of Appeals totally disregarded the possibility that this prima facie statistical proof in the record might at the trial court level be rebutted by statistics dealing with Hazelwood's hiring after it became subject to Title VII. Racial discrimination by public employers was not made illegal under Title VII until March 24, 1972. A public employer who from that date forward made all its employment decisions in a wholly nondiscriminatory way would not violate Title VII even if it had formerly maintained an all-white work force by purposefully excluding Negroes.15 For this reason, the Court cautioned in the Teamsters opinion that once a prima facie case has been established by statistical work-force disparities, the employer must be given an opportunity to show that 'the claimed discriminatory pattern is a product of pre-Act hiring rather than unlawful post-Act discrimination.' 431 U.S., at 360, 97 S.Ct., at 1867.
18
The record in this case showed that for the 1972-1973 school , Hazelwood hired 282 new teachers, 10 whom (3.5%) were Negroes; for the following school year it hired 123 new teachers, 5 of whom (4.1%) were Negroes. Over the two-year period, Negroes constituted a total of 15 of the 405 new teachers hired (3.7%). Although the Court of Appeals briefly mentioned these data in reciting the facts, it wholly ignored them in discussing whether the Government had shown a pattern or practice of discrimination. And it gave no consideration at all to the possibility that post-Act data as to the number of Negroes hired compared to the total number of Negro applicants might tell a totally different story.16
19
What the hiring figures prove obviously depends upon the figures to which they are compared. The Court of Appeals accepted the Government's argument that the relevant comparison was to the labor market area of St. Louis County and the city of St. Louis, in which, according to the 1970 census, 15.4% of all teachers were Negro. The propriety of that comparison was vigorously disputed by the petitioners, who urged that because the city of St. Louis has made special attempts to maintain a 50% Negro teaching staff, inclusion of that school district in the relevant market area distorts the comparison. Were that argument accepted, the percentage of Negro teachers in the relevant labor market area (St. Louis County alone) as shown in the 1970 census would be 5.7% rather than 15.4%.
20
The difference between these figures may well be important; the disparity between 3.7% (the percentage of Negro teachers hired by Hazelwood in 1972-1973 and 1973-1974) and 5.7% may be sufficiently small to weaken the Government's other proof, while the disparity between 3.7% and 15.4% may be sufficiently large to reinforce it.17 In determining which of the two figures or, very possibly, what intermediate figure provides the most accurate basis for comparison to the hiring figures at Hazelwood, it will be necessary to evaluate such considerations as (i) whether the racially based hiring policies of the St. Louis City School District were in effect as far back as 1970, the year in which the census figures were taken;18 (ii) to what extent those policies have changed the racial composition of that district's teaching staff from what it would otherwise have been; (iii) to what extent St. Louis' recruitment policies have diverted to the city, teachers who might otherwise have applied to Hazelwood;19 (iv) to what extent Negro teachers employed by the city would prefer employment in other districts such as Hazelwood; and (v) what the experience in other school districts in St. Louis County indicates about the validity of excluding the City School District from the relevant labor market.
21
It is thus clear that a determination of the appropriate comparative figures in this case will depend upon further evaluation by the trial court. As this Court admonished in Teamsters: '(S)tatistics . . . come in infinite variety . . .. (T)heir usefulness depends on all of the surrounding facts and circumstances.' 431 U.S., at 340, 97 S.Ct., at 1856-1857. Only the trial court is in a position to make the appropriate determination after further findings. And only after such a determination is made can a foundation be established for deciding whether or not Hazelwood engaged in a pattern or practice of racial discrimination in its employment practices in violation of the law.20
22
We hold, therefore, that the Court of Appeals erred in disregarding the post-Act hiring statistics in the record, and that it should have remanded the case to the District Court for further findings as to the relevant labor market area and for an ultimate determination of whether Hazelwood engaged in a pattern or practice of employment discrimination after March 24, 1972.21 Accordingly, the judgment is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion.
23
It is so ordered.
24
Mr. Justice BRENNAN, concurring.
25
I join the Court's opinion. Similarly to our decision in Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851, today's opinion revolves around the relative factfinding roles of district courts and courts of appeals. It should be plain, however, that the liberal substantive standards for establishing a Title VII violation, including the usefulness of statistical proof, are reconfirmed.
26
In the present case, the District Court had adopted a wholly inappropriate legal standard of discrimination, and therefore did not evaluate the factual record before it in a meaningful way. This remand in effect orders it to do so. It is my understanding, as apparently it is Mr. Justice STEVENS', post, at 318 n. 5, that the statistical inquiry mentioned by the Court, ante, at 311 n. 17, and accompanying text, can be of no help to the Hazelwood School Board in rebutting the Government's evidence of discrimination. Indeed, even if the relative comparison market is found to be 5.7% rather than 15.4% black, the applicable statistical analysis at most will not serve to bolster the Government's case. This obviously is of no aid to Hazelwood in meeting its burden of proof. Nonetheless I think that the remand directed by the Court is appropriate and will allow the parties to address these figures and calculations with greater care and precision. I also agree that given the misapplication of governing legal principles by the District Court. Hazelwood reasonably should be given the opportunity to come forward with more focused and specific applicant-flow data in the hope of answering the Government's prima facie case. If, as presently seems likely, reliable applicant data are found to be lacking, the conclusion reached by my Brother STEVENS will inevitably be forthcoming.
27
Mr. Justice STEVENS, dissenting.
28
The basic framework in a pattern-or-practice suit brought by the Government under Title VII of the Civil Rights Act of 1964 is the same as that in any other lawsuit. The plaintiff has the burden of proving a prima facie case; if he does so, the burden of rebutting that case shifts to the defendant.1 In this case, since neither party complains that any relevant evidence was excluded, our task is to decide (1) whether the Government's evidence established a prima facie case; and (2), if so, whether the remaining evidence is sufficient to carry Hazelwood's burden of rebutting that prima facie case.
29
* The first question is clearly answered by the Government's statistical evidence, its historical evidence, and its evidence relating to specific acts of discrimination.
30
One-third of the teachers hired by Hazelwood resided in the city of St. Louis at the time of their initial employment. As Mr. Justice Clark explained in his opinion for the Court of Appeals, it was therefore appropriate to treat the city, as well as the county, as part of the relevant labor market.2 In that market, 15% of the teachers were black. In the Hazelwood District at the time of trial less than 2% of the teachers were black. An even more telling statistic is that after Title VII became applicable to it, only 3.7% of the new teachers hired by Hazelwood were black. Proof of these gross disparities was in itself sufficient to make out a prima facie case of discrimination. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977); Castaneda v. Partida, 430 U.S. 482, 494-498, 97 S.Ct. 1272, 1280-1282, 51 L.Ed.2d 498.
31
As a matter of history, Hazelwood employed no black teachers until 1969. Both before and after the 1972 amendment making the statute applicable to public school districts, petitioner used a standardless and largely subjective hiring procedure. Since 'relevant aspects of the decisionmaking process had undergone little change,' it is proper to infer that the pre-Act policy of preferring white teachers continued to influence Hazelwood's hiring practices.3
32
The inference of discrimination was corroborated by post-Act evidence that Hazelwood had refused to hire 16 qualified black applicants for racial reasons. Taking the Government's evidence as a whole, there can be no doubt about the sufficiency of its prima facie case.
II
33
Hazelwood 'offered virtually no additional evidence in response,' ante, at 303. It challenges the Government's statistical analysis by claiming that the city of St. Louis should be excluded from the relevant market and pointing out that only 5.7% of the teachers in the county (excluding the city) were black. It further argues that the city's policy of trying to maintain a 50% black teaching staff diverted teachers from the county to the city. There are two separate reasons why these arguments are insufficient: they are not supported by the evidence; even if true, they do not overcome the Government's case.
34
The petitioners offered no evidence concerning wage differentials, commuting problems, or the relative advantages of teaching in an inner-city school as opposed to a suburban school. Without any such evidence in the record, it is difficult to understand why the simple fact that the city was the source of a third of Hazelwood's faculty should not be sufficient to demonstrate that it is a part of the relevant market. The city's policy of attempting to maintain a 50/50 ratio clearly does not undermine that conclusion, particularly when the record reveals no shortage of qualified black applicants in either Hazelwood or other suburban school districts.4 Surely not all of the 2,000 black teachers employed by the city were unavailable for employment in Hazelwood at the time of their initial hire.
35
But even if it were proper to exclude the city of St. Louis from the market, the statistical evidence would still tend to prove discrimination. With the city excluded, 5.7% of the teachers in the remaining market were black. On the basis of a random selection, one would therefore expect 5.7% of the 405 teachers hired by Hazelwood in the 1972-1973 and 1973-1974 school years to have been black. But instead of 23 black teachers, Hazelwood hired only 15, less than two-thirds of the expected number. Without the benefit of expert testimony, I would hesitate to infer that the disparity between 23 and 15 is great enough, in itself, to prove discrimination.5 It is perfectly clear, however, that whatever probative force this disparity has, it tends to prove discrimination and does absolutely nothing in the way of carrying Hazelwood's burden of overcoming the Government's prima facie case.
36
Absolute precision in the analysis of market data is too much to expect. We may fairly assume that a nondiscriminatory selection process would have resulted in the hiring of somewhere between the 15% suggested by the Government and the 5.7% suggested by petitioners, or perhaps 30 or 40 black teachers, instead of the 15 actually hired.6 On that assumption, the Court of Appeals' determination that there were 16 individual cases of discriminatory refusal to hire black applicants in the post-1972 period seems remarkably accurate.
37
In sum, the Government is entitled to prevail on the present record. It proved a prima facie case, which Hazelwood failed to rebut. Why, then, should we burden a busy federal court with another trial? Hazelwood had an opportunity to offer evidence to dispute the 16 examples of racially motivated refusals to hire; but as the Court notes, the Court of Appeals has already 'held that none of the 16 prima facie cases of individual discrimination had been rebutted by the petitioners. See 534 F.2d 805, 814 (CA8).' Ante, at 306 n. 10. Hazelwood also had an opportunity to offer any evidence it could muster to show a change in hiring practices or to contradict the fair inference to be drawn from the statistical evidence. Instead, it 'offered virtually no additional evidence in response,' ante, at 303.
38
Perhaps 'a totally different story' might be told by other statistical evidence that was never presented, ante, at 310. No lawsuit has ever been tried in which the losing party could not have pointed to a similar possibility.7 It is always possible to imagine more evidence which could have been offered, but at some point litigation must come to an end.8
39
Rather than depart from well-established rules of procedure, I would affirm the judgment of the Court of Appeals.9 Since that judgment reflected a correct appraisal of the record, I see no reason to prolong this litigation with a remand neither side requested.10
1
Under 42 U.S.C. § 2000e-6(a), the Attorney General was authorized to bring a civil action '(w)henever (he) has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by (Title VII), and that the pattern or practice is of such a nature and is intended to deny the full exercise of (those rights).' The 1972 amendments to Title VII directed that this function be transferred as of March 24, 1974, to the Equal Employment Opportunity Commission, at least with respect to private employers. § 2000e-6(c) (1970 ed., Supp. V); see also, § 2000e-5(f)(1) (1970 ed., Supp. V). The present lawsuit was instituted more than seven months before that transfer.
2
Before 1954 Hazelwood's application forms required designation of race, and those forms were in use as late as the 1962-1963 school year.
3
Applicants with student or substitute teaching experience at Hazelwood were given preference if their performance had been satisfactory.
4
One of those two schools was never visited even though it was located in nearby St. Louis. The second was briefly visited on one occasion, but no potential applicant was interviewed.
5
The parties disagree whether it is possible to determine from the present record exactly how many of the job applicants in each of the school years were Negroes.
6
The defendants offered only one witness, who testified to the total number of teachers who had applied and were hired for jobs in the 1971-1972 and 1972-1973 school years. They introduced several exhibits consisting of a policy manual, policy book, staff handbook, and historical summary of Hazelwood's formation and relatively brief existence.
7
As originally enacted, Title VII of the Civil Rights Act of 1964 applied only to private employer. The Act was expanded to include state and local governmental employers by the Equal Employment Opportunity Act of 1972, 86 Stat. 103, whose effective date was March 24, 1972. See 42 U.S.C. §§ 2000e(a), (b), (f), (h) (1970 ed., Supp. V).
The evidence of pre-Act discrimination relied upon by the Court of Appeals included the failure to hire any Negro teachers until 1969, the failure to recruit at predominantly Negro colleges in Missouri, and somewhat inconclusive evidence that Hazelwood was responsible for a 1962 Mississippi newspaper advertisement for teacher applicants that specified 'white only.'
8
The city of St. Louis is surrounded by, but not included in, St. Louis County. Mo.Ann.Stat. § 46.145 (1966).
9
Under McDonnell Douglas, a prima facie case of illegal employment discrimination is established by showing
'(i) that (an individual) belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.' 411 U.S., at 802, 93 S.Ct., at 1824.
Upon proof of these four elements, '(t)he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection'. Ibid.
10
The Court of Appeals held that none of the 16 prima facie cases of individual discrimination had been rebutted by the petitioners. See 534 F.2d, at 814.
11
The District Court was directed to order that the petitioners cease from discriminating on the basis of race or color in the hiring of teachers, promulgate accurate job descriptions and hiring criteria, recruit Negro and white applicants on an equal basis, give preference in filling vacancies to the 16 discriminatorily rejected applicants, make appropriate backpay awards, and submit periodic reports to the Government on its progress in hiring qualified Negro teachers. Id., at 819-820.
12
In their petition for certiorari and brief on the merits, the petitioners have phrased the question as follows:
'Whether a court may disregard evidence that an employer has treated actual job applicants in a nondiscriminatory manner and rely on undifferentiated workforce statistics to find an unrebutted prima facie case of employment discrimination in violation of Title VII of the Civil Rights Act of 1964.'
Their petition for certiorari and brief on the merits did raise a second question: 'Whether Congress has authority under Section 5 of the Fourteenth Amendment to prohibit by Title VII of the Civil Rights Act of 1964 employment practices of an agency of a state government in the absence of proof that the agency purposefully discriminated against applicants on the basis of race.' That issue, however, is not presented by the facts in this case. The Government's opening statement in the trial court explained that its evidence was designed to show that the scarcity of Negro teachers at Hazelwood 'is the result of purpose' and is attributable to 'deliberately continued employment policies.' Thus here, as in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396, '(t)he Government's theory of discrimination was simply that the (employer), in violation of § 703(a) of Title VII, regularly and purposefully treated Negroes . . . less favorably than white persons.' Id., at 335, 97 S.Ct., at 1854 (footnote omitted).
13
In Teamsters, the comparison between the percentage of Negroes on the employer's work force and the percentage in the general areawide population was highly probative, because the job skill there involved the ability to drive a truck is one that many persons possess or can fairly readily acquire. When special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value. The comparative statistics introduced by the Government in the District Court, however, were properly limited to public school teachers, and therefore this is not a case like Mayor v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630, in which the racial-composition comparisons failed to take into account special qualifications for the position in question. Id., at 620-621, 94 S.Ct., at 1333-1334.
Although the petitioners concede as a general matter the probative force of the comparative work-force statistics, they object to the Court of Appeals' heavy reliance on these data on the ground that applicant-flow data, showing the actual percentage of white and Negro applicants for teaching positions at Hazelwood, would be firmer proof. As we have noted, see n. 5, supra, there was no clear evidence of such statistics. We leave it to the District Court on remand to determine whether competent proof of those data can be adduced. If so, it would, of course, be very relevant. Cf. Dothard v. Rawlinson, 433 U.S., 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786.
14
As is discussed below, the Government contends that a comparative figure of 15.4%, rather than 5.7%, is the appropriate one. See infra, at 310-312. But even assuming, arguendo, that the 5.7% figure urged by the petitioners is correct, the disparity between that figure and the percentage of Negroes on Hazelwood's teaching staff would be more than fourfold for the 1972-1973 school year, and threefold for the 1973-1974 school year. A precise method of measuring the significance of such statistical disparities was explained in Castaneda v. Partida, 430 U.S. 482, 496-497, n. 17, 97 S.Ct. 1272, 1281, n. 17, 51 L.Ed.2d 498, n. 17. It involves calculation of the 'standard deviation' as a measure of predicted fluctuations from the expected value of a sample. Using the 5.7% figure as the basis for calculating the expected value, the expected number of Negroes on the Hazelwood teaching staff would be roughly 63 in 1972-1973 and 70 in 1973-1974. The observed number in those years was 16 and 22, respectively. The difference between the observed and expected values was more than six standard deviations in 1972-1973 and more than five standard deviations in 1973-1974. The Court in Castaneda noted
that '(a)s 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 teachers were hired without regard to race would be suspect. 430 U.S., at 497 n. 17, 97 S.Ct., at 1281 n. 17.
15
This is not to say that evidence of pre-Act discrimination can never have any probative force. Proof that an employer engaged in racial discrimination prior to the effective date of Title VII might in some circumstances support the inference that such discrimination continued, particularly where relevant aspects of the decisionmaking process had undergone little change. Cf. Fed.Rule Evid. 406; Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S., 252, 267, 97 S.Ct. 555, 564, 50 L.Ed.2d 450; 1 J. Wigmore, Evidence § 92 (3d ed. 1940); 2 id., 302-305, 371, 375. And, of course, a public employer even before the extension of Title VII in 1972 was subject to the command of the Fourteenth Amendment not to engage in purposeful racial discrimination.
16
See n. 13, supra, and n. 21, infra. But cf. Teamsters, 431 U.S., at 364-367, 97 S.Ct., at 1868-1869.
17
Indeed, under the statistical methodology explained in Castaneda v. Partida, supra, 430 U.S., at 496-497, n. 17, 97 S.Ct. 1272, at 1281, n. 17, 51 L.Ed.2d 498 n. 17, involving the calculation of the standard deviation as a measure of predicted fluctuations, the difference between using 15.4% and 5.7% as the areawide figure would be significant. If the 15.4% figure is taken as the basis for comparison, the expected number of Negro teachers hired by Hazelwood in 1972-1973 would be 43 (rather than the actual figure of 10) of a total of 282, a difference of more than five standard deviations; the expected number of 1973-1974 would be 19 (rather than the actual figure 5) of a total of 123, a difference of more than three standard deviations. For the two years combined, the difference between the observed number of 15 Negro teachers hired (of a total of 405) would vary from the expected number of 62 by more than six standard deviations. Because a fluctuation of more than two or three standard deviations would undercut the hypothesis that decisions were being made randomly with respect to race, 430 U.S., at 497 n. 17, 97 S.Ct., at 1281 n. 17, each of these statistical comparisons would reinforce rather than rebut the Government's other proof. If, however, the 5.7% areawide figure is used, the expected number of Negro teachers hired in 1972-1973 would be roughly 16, less than two standard deviations from the observed number of 10; for 1973-1974, the expected value would be roughly seven, less than one standard deviation from the observed value of 5; and for the two years combined, the expected value of 23 would be less than two standard deviations from the observed total of 15. A more precise method of analyzing these statistics confirms the results of the standard deviation analysis. See F. Mosteller, R. Rourke, & G. Thomas, Probability with Statistical Applications 494 (2d ed. 1970).
These observations are not intended to suggest that precise calculations of statistical significance are necessary in employing statistical proof, but merely to highlight the importance of the choice of the relevant labor market area.
18
In 1970 Negroes constituted only 42% of the faculty in St. Louis city schools, which could indicate either that the city's policy was not yet in effect or simply that its goal had not yet been achieved.
19
The petitioners observe, for example, that Harris Teachers College in St. Louis, whose 1973 graduating class was 60% Negro, is operated by the city. It is the petitioners' contention that the city's public elementary and secondary schools occupy an advantageous position in the recruitment of Harris graduates.
20
Because the District Court focused on a comparison between the percentage of Negro teachers and Negro pupils in Hazelwood, it did not undertake an evaluation of the relevant labor market, and its casual dictum that the inclusion of the city of St. Louis 'distorted' the labor market statistics was not based upon valid criteria. 392 F.Supp. 1276, 1287 (ED Mo.).
21
It will also be open to the District Court on remand to determine whether sufficiently reliable applicant-flow data are available to permit consideration of the petitioners' argument that those data may undercut a statistical analysis dependent upon hirings alone.
1
'At the initial 'liability' stage of a pattern-or-practice suit the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the Government's proof is either inaccurate or insignificant. An employer might show, for example, that the claimed discriminatory pattern is a product of pre-Act hiring rather than unlawful post-Act discrimination, or that during the period it is alleged to have pursued a discriminatory policy it made too few employment decisions to justify the inference that it had engaged in a regular practice of discrimination.' International Brotherhood of Teamsters v. United States, 431 U.S. 324, 360, 97 S.Ct. 1843, 1867, 52 L.Ed.2d 396.
2
'We accept the Government's contention that St. Louis City and County is the relevant labor market area for our consideration. The relevant labor market area is that area from which the employer draws its employees. United States v. Ironworkers Local 86, 443 F.2d 544, 551 n. 19 (9th Cir. 1971). Of the 176 teachers hired by Hazelwood between October, 1972, and September, 1973, approximately 80 percent resided in St. Louis City and County at the time of their initial employment. Approximately one-third of the teachers hired during this period resided in the City of St. Louis and 40 percent resided in areas of St. Louis County other than the Hazelwood District.' 534 F.2d 805, 811-812, n. 7 (1976).
It is noteworthy that in the Court of Appeals, Chief Judge Gibson, in dissent, though urging as Hazelwood had in the District Court that the labor market was even broader than the Government contended, id., at 821, did not question the propriety of including the city in the same market as the county, see Defendants' Brief and Memorandum in Support of Its Proposed Findings of Fact and Conclusions of Law, filed on Aug. 21, 1974, in Civ. Act. No. 73-C-553(A) (ED Mo.). In this Court, petitioners had abandoned any argument similar to that made below.
3
Proof that an employer engaged in racial discrimination prior to the effective date of the Act creates the inference that such discrimination continued 'particularly where relevant aspects of the decisionmaking process (have) undergone little change. Cf. Fed.Rule Evid. 406; Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 50 L.Ed.2d 450; 1 J. Wigmore, Evidence § 92 (3d ed. 1940); 2 id., §§ 302-305, 371, 375. And, of course, a public employer even before the extension of Title VII in 1972 was subject to the command of the Fourteenth Amendment not to engage in purposeful racial discrimination.' Ante, at 309-310, n. 15.
Since Hazelwood's hiring before 1972 was so clearly discriminatory, there is some irony in its claim that 'Hazelwood continued (after 1972) to select its teachers on the same careful basis that it had relied on before in staffing its growing system.' Brief for Petitioners 29-30.
4
'Had there been evidence obtainable to contradict and disprove the testimony offered by (the Government), it cannot be assumed that the State would have refrained from introducing it.' Pierre v. Louisiana, 306 U.S. 354, 361-362, 59 S.Ct. 536, 540, 83 L.Ed. 757.
5
After I had drafted this opinion, one of my law clerks advised me that, given the size of the two-year sample, there is only about a 5% likelihood that a disparity this large would be produced by a random selection from the labor pool. If his calculation (which was made using the method described in H. Blalock, Social Statistics 151-173 (1972)) is correct, it is easy to understand why Hazelwood offered no expert testimony.
6
Some of the other school districts in the county have a 10% ratio of blacks on their faculties. See Plaintiff's Exhibit 54 in Civ. Act. No. 73-C-553(A) (ED Mo. 1975); Brief for United States 30 n. 30.
7
Since Hazelwood failed to offer any 'applicant-flow data' at the trial, and since it does not now claim to have any newly discovered evidence, I am puzzled by Mr. Justice BRENNAN's explanation of the justification for a remand. Indeed, after the first trial was concluded, Hazelwood emphasized the fact that no evidence of this kind had been presented; it introduced no such evidence itself. It stated: 'There is absolutely no evidence in this case that provides any basis for making a comparison between black applicants and white applicants and their treatment by the Hazelwood School District relative to hiring or not being hired for a teaching position.' Defendants' Brief and Memorandum in Support of Its Proposed Findings of Fact and Conclusions of Law, supra, n. 2, at 22.
8
My analysis of this case is somewhat similar to Mr. Justice REHNQUIST's analysis in Dothard v. Rawlinson:
'If the defendants in a Title VII suit believe there to be any reason to discredit plaintiffs' statistics that does not appear on their face, the opportunity to challenge them is available to the defendants just as in any other lawsuit. They may endeavor to impeach the reliability of the statistical evidence, they may offer rebutting evidence, they may disparage in arguments or in briefs the probative weight which the plaintiffs' evidence should be accorded. Since I agree with the Court that appellants made virtually no such effort, . . . I also agree with it that the District Court cannot be said to have erred as a matter of law in finding that a prima facie case had been made out in the instant case.' 433 U.S. 321, at 338-339, 97 S.Ct. 2720, 2731, 53 L.Ed.2d 786 (concurring opinion).
9
It is interesting to compare the disposition in this case with that in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498. In Castaneda, as in this case, '(i)nexplicably, the State introduced practically no evidence,' id., at 498, 97 S.Ct., at 1282. But in Castaneda, unlike the present case, the Court affirmed the finding of discrimination, rather than giving the State a second chance at trying its case. (It should be noted that the Castaneda Court expressly stated that it was possible that the statistical discrepancy could have been explained by the State. Id., at 499, 97 S.Ct., at 1282.)
10
Hazelwood's brief asks only for a remand 'for reconsideration of the alleged individual cases of discrimination . . ..' Brief for Petitioners 78. Hazelwood explains: '(The question raised in its petition for certiorari is) a question of law. It is a question of what sort of evidentiary showing satisfies Title VII. . . . The question is whether on the evidence of record an unrebutted prima facie case was established.' Reply Brief for Petitioners 2.
| 12
|
433 U.S. 350
97 S.Ct. 2691
53 L.Ed.2d 810
John R. BATES and Van O'Steen, Appellants,v.STATE BAR OF ARIZONA.
No. 76-316.
Argued Jan. 18, 1977.
Decided June 27, 1977.
Rehearing Denied Oct. 3, 1977.
See 434 U.S. 881, 98 S.Ct. 242.
Syllabus
Appellants, who are licensed attorneys and members of the Arizona State Bar, were charged in a complaint filed by the State Bar's president with violating the State Supreme Court's disciplinary rule, which prohibits attorneys from advertising in newspapers or other media. The complaint was based upon a newspaper advertisement placed by appellants for their 'legal clinic,' stating that they were offering 'legal services at very reasonable fees,' and listing their fees for certain services, namely, uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name. The Arizona Supreme Court upheld the conclusion of a bar committee that appellants had violated the rule, having rejected appellants' claims that the rule violated §§ 1 and 2 of the Sherman Act because of its tendency to limit competition and that it infringed appellants' First Amendment rights. Held:
1. The restraint upon attorney advertising imposed by the Supreme Court of Arizona wielding the power of the State over the practice of law is not subject to attack under the Sherman Act. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, followed; Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572; Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141, distinguished. Pp. 359-363.
2. Commercial speech, which serves individual and societal interests in assuring informed and reliable decisionmaking, is entitled to some First Amendment protection, Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346, and the justifications advanced by appellee are inadequate to support the suppression of all advertising by attorneys. Pp. 363-384.
(a) This case does not involve any question concerning in-person solicitation or advertising as to the quality of legal services, but only the question whether lawyers may constitutionally advertise the prices at which certain routine services will be performed. Pp. 366-367.
(b) The belief that lawyers are somehow above 'trade' is an anachronism, and for a lawyer to advertise his fees will not undermine true professionalism. Pp. 368-372.
(c) Advertising legal services is not inherently misleading. Only routine services lend themselves to advertising, and for such services fixed rates can be meaningfully established, as the Arizona State Bar's own Legal Services Program demonstrates. Although a client may not know the detail involved in a given task, he can identify the service at the level of generality to which advertising lends itself. Though advertising does not provide a complete foundation on which to select an attorney, it would be peculiar to deny the consumer at least some of the relevant information needed for an informed decision on the ground that the information was not complete. Pp. 372-375.
(d) Advertising, the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange, may well benefit the administration of justice. Pp. 375-377.
(e) It is entirely possible that advertising will serve to reduce, not advance, the cost of legal services to the consumer, and may well aid new attorneys in entering the market. Pp. 377-378.
(f) An attorney who is inclined to cut quality will do so regardless of the rule on advertising, the restraints on which are an ineffective deterrent to shoddy work. Pp. 378-379.
(g) Undue enforcement problems need not be anticipated, and it is at least incongruous for the opponents of advertising to extol the virtues of the legal profession while also asserting that through advertising lawyers will mislead their clients. P. 379.
3. The First Amendment overbreadth doctrine, which represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court, is inapplicable to professional advertising, a context where it is not necessary to further its intended objective, cf. Bigelow v. Virginia, 421 U.S. 809, 817-818, 95 S.Ct. 2222, 2230, 44 L.Ed.2d 600, and appellants must therefore demonstrate that their specific conduct was constitutionally protected. Pp. 379-381.
4. On this record, appellants' advertisement (contrary to appellee's contention) is not misleading and falls within the scope of First Amendment protection. Pp. 381-382.
(a) The term 'legal clinic' would be understood to refer to an operation like appellants' that is geared to provide standardized and multiple services. Pp. 381-382.
(b) The advertisement's claim that appellants offer services at 'very reasonable' prices is not misleading. Appellants' advertised fee for an uncontested divorce, which was specifically cited by appellee, is in line with customary charges in the area. P. 382.
(c) Appellants' failure to disclose that a name change might be accomplished by the client without an attorney's aid was not misleading since the difficulty of performing the task is not revealed and since most legal services may be performed legally by the citizen for himself. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. P. 382.
113 Ariz. 394, 555 P.2d 640, affirmed in part and reversed in part.
William C. Canby, Jr., Tempe, Ariz., for appellants.
Daniel M. Friedman, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
John P. Frank, Phoenix, Ariz., for appellees.
[Amicus Curiae Information from pages 352-353 intentionally omitted]
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
As part of its regulation of the Arizona Bar, the Supreme Court of that State has imposed and enforces a disciplinary rule that restricts advertising by attorneys. This case presents two issues: whether §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, forbid such state regulation, and whether the operation of the rule violates the First Amendment, made applicable to the State through the Fourteenth.1
2
* Appellants John R. Bates and Van O'Steen are attorneys licensed to practice law in the State of Arizona.2 As such, they are members of the appellee, the State Bar of Arizona.3 After admission to the bar in 1972, appellants worked as attorneys with the Maricopa County Legal Aid Society. App. 221.
3
In March 1974, appellants left the Society and opened a law office, which they call a 'legal clinic,' in Phoenix. Their aim was to provide legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid. Id., at 75. In order to achieve this end, they would accept only routine matters, such as uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name, for which costs could be kept down by extensive use of paralegals, automatic typewriting equipment, and standardized forms and office procedures. More complicated cases, such as contested divorces, would not be accepted. Id., at 97. Because appellants set their prices so as to have a relatively low return on each case they handled, they depended on substantial volume. Id., at 122-123.
4
After conducting their practice in this manner for two years, appellants concluded that their practice and clinical concept could not survive unless the availability of legal services at low cost was advertised and in particular, fees were advertised. Id., at 120-123. Consequently, in order to generate the necessary flow of business, that is, 'to attract clients,' id., at 121; Tr. of Oral Arg. 4, appellants on February 22, 1976, placed an advertisement (reproduced in the Appendix to this opinion, infra, at 385) in the Arizona Republic, a daily newspaper of general circulation in the Phoenix metropolitan area. As may be seen, the advertisement stated that appellants were offering 'legal services at very reasonable fees,' and listed their fees for certain services.4
5
Appellants concede that the advertisement constituted a clear violation of Disciplinary Rule 2-101(B), incorporated in Rule 29(a) of the Supreme Court of Arizona, 17A Ariz.Rev.Stat., p. 26 (Supp. 1976). The disciplinary rule provides in part:
6
'(B) A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, ratio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf.'5
7
Upon the filing of a complaint initiated by the president of the State Bar, App. 350, a hearing was held before a three-member Special Local Administrative Committee, as prescribed by Arizona Supreme Court Rule 33. App. 16. Although the committee took the position that it could not consider an attack on the validity of the rule, it allowed the parties to develop a record on which such a challenge could be based. The committee recommended that each of the appellants be suspended from the practice of law for not less than six months. Id., at 482. Upon further review by the Board of Governors of the State Bar, pursuant to the Supreme Court's Rule 36, the Board recommended only a one-week suspension for each appellant, the weeks to run consecutively. App. 486-487.
8
Appellants, as permitted by the Supreme Court's Rule 37, then sought review in the Supreme Court of Arizona, arguing, among other things, that the disciplinary rule violated §§ 1 and 2 of the Sherman Act because of its tendency to limit competition, and that the rule infringed their First Amendment rights. The court rejected both claims. In re Bates, 113 Ariz. 394, 555 P.2d 640 (1976). The plurality6 may have viewed with some skepticism the claim that a restraint on advertising might have an adverse effect on competition.7 But, even if the rule might otherwise violate the Act, the plurality concluded that the regulation was exempt from Sherman Act attack because the rule 'is an activity of the State of Arizona acting as sovereign.' Id., at 397, 555 P.2d at 643. The regulation thus was held to be shielded from the Sherman Act by the state-action exemption of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943).
9
Turning to the First Amendment issue, the plurality noted that restrictions on professional advertising have survived constitutional challenge in the past, citing, along with other cases, Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), and Semler v. Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086 (1935).8 Although recognizing that Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), and Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), held that commercial speech was entitled to certain protection under the First Amendment, the plurality focused on passages in those opinions acknowledging that special considerations might bear on the advertising of professional services by lawyers. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 773 n. 25, 96 S.Ct., at 1831; id., at 773-775, 96 S.Ct. at 1831-1832 (concurring opinion); Bigelow v. Virginia, 421 U.S., at 825 n. 10, 95 S.C., at 2234. The plurality apparently was of the view that the older decisions dealing with professional advertising survived these recent cases unscathed, and held that Disciplinary Rule 2-101(B) passed First Amendment muster.9 Because the court, in agreement with the Board of Governors, felt that appellants' advertising 'was done in good faith to test the constitutionality of DR 2-101(B),' it reduced the sanction to censure only.10 113 Ariz., at 400, 555 P.2d, at 646.
10
Of particular interest here is the opinion of Mr. Justice Holohan in dissent. In his view, the case should have been framed in terms of 'the right of the public as consumers and citizens to know about the activities of the legal profession,' id., at 402, 555 P.2d, at 648, rather than as one involving merely the regulation of a profession. Observed in this light, he felt that the rule performed a substantial disservice to the public:
11
'Obviously the information of what lawyers charge is important for private economic decisions by those in need of legal services. Such information is also helpful, perhaps indispensable, to the formation of an intelligent opinion by the public on how well the legal system is working and whether it should be regulated or even altered. . . . The rule at issue prevents access to such information by the public.' Id., at 402-403, 555 P.2d, at 648-649.
12
Although the dissenter acknowledged that some types of advertising might cause confusion and deceptin, he felt that the remedy was to ban that form, rather than all advertising. Thus, despite his 'personal dislike of the concept of advertising by attorneys,' id., at 402, 555 P.2d, at 648, he found the ban unconstitutional.
13
We noted probable jurisdiction. 429 U.S. 813, 97 S.Ct. 53, 50 L.Ed.2d 73 (1976).
II
The Sherman Act
14
In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), this Court held that the Sherman Act was not intended to apply against certain state action. See also Olsen v. Smith, 195 U.S. 332, 344-345, 25 S.Ct. 52, 54-55, 49 L.Ed. 224 (1904). In Parker a raisin producer-packer brought suit against California officials challenging a state program designed to restrict competition among growers and thereby to maintain prices in the raisin market. The Court held that the State, '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. Appellee argues, and the Arizona Supreme Court held, that the Parker exemption also bars the instant Sherman Act claim. We agree.
15
Of course, Parker v. Brown has not been the final word on the matter. In two recent cases the Court has considered the state-action exemption to the Sherman Act and found it inapplicable for one reason or another. Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975); Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). Goldfarb and Cantor, however, are distinguishable, and their reasoning supports our conclusion here.
16
In Goldfarb we held that § 1 of the Sherman Act was violated by the publication of a minimum-fee schedule by a county bar association and by its enforcement by the State Bar. The schedule and its enforcement mechanism operated to create a rigid price floor for services and thus constituted a classic example of price fixing. Both bar association argued that their activity was shielded by the state-action exemption. This Court concluded that the action was not protected, emphasizing that 'we need not inquire further into the stateaction question because it cannot fairly be said that the State of Virginia through its Supreme Court Rules required the anticompetitive activities of either respondent.' 421 U.S., at 790, 95 S.Ct., at 2015. In the instant case, by contrast, the challenged restraint is the affirmative command of the Arizona Supreme Court under its Rules 27(a) and 29(a) and its Disciplinary Rule 2-101(B). That court is the ultimate body wielding the State's power over the practice of law, see Ariz.Const., Art. 3; In re Bailey, 30 Ariz. 407, 248 P. 29 (1926), and, thus, the restraint is 'compelled by direction of the State acting as a sovereign.' 421 U.S., at 791, 95 S.Ct., at 2015.11
17
Appellants seek to draw solace from Cantor. The defendant in that case, an electric utility, distributed light bulbs to its residential customers without additional charge, including the costs in its state-regulated utility rates. The plaintiff, a retailer who sold light bulbs, brought suit, claiming that the utility was using its monopoly power in the distribution of electricity to restrain competition in the sale of bulbs. The Court held that the utility could not immunize itself from Sherman Act attack by embodying its challenged practices in a tariff approved by a state commission. Since the disciplinary rule at issue here is derived from the Code of Professional Responsibility of the American Bar Association,12 appellants argue by analogy to Cantor that no immunity should result from the bar's success in having the Code adopted by the State. They also assert that the interest embodied in the Sherman Act must prevail over the state interest in regulating the bar. See 428 U.S., at 595, 96 S.Ct., at 3119. Particularly is this the case, they claim, because the advertising ban is not tailored so as to intrude upon the federal interest to the minimum extent necessary. See id., at 596 n. 34, and 597, 96 S.Ct., at 3119, and 3120.
18
We believe, however, that the context in which Cantor arose is critical. First, and most obviously, Cantor would have been an entirely different case if the claim had been directed against a public official or public agency, rather than against a private party.13 Here, the appellants' claims are against the State. The Arizona Supreme Court is the real party in interest; it adopted the rules, and it is the ultimate trier of fact and law in the enforcement process. In re Wilson, 106 Ariz. 34, 470 P.2d 441 (1970). Although the State Bar plays a part in the enforcement of the rules, its role is completely defined by the court; the appellee acts as the agent of the court under its continuous supervision.
19
Second, the Court emphasized in Cantor that the State had no independent regulatory interest in the market for light bulbs. 428 U.S., at 584-585, 96 S.Ct., at 3114; id., at 604-605, 612-614, 96 S.Ct., at 3123-3124, 3127-3128 (concurring opinions). There was no suggestion that the bulb program was justified by flaws in the competitive market or was a response to health or safety concerns. And an exemption for the program was not essential to the State's regulation of electric utilities. In contrast, the regulation of the activities of the bar is at the core of the State's power to protect the public. Indeed, this Court in Goldfarb acknowledged that '(t)he interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been 'officers of the courts." 421 U.S., at 792, 95 S.Ct., at 2016. See Cohen v. Hurley, 366 U.S. 117, 123-124, 81 S.Ct. 954, 958, 6 L.Ed.2d 156 (1961).14 More specifically, controls over solicitation and advertising by attorneys have long been subject to the State's oversight.15 Federal interference with a State's traditional regulation of a profession is entirely unlike the intrusion the Court sanctioned in Cantor.16
20
Finally, the light-bulb program in Cantor was instigated by the utility with only the acquiescence of the state regulatory commission. The State's incorporation of the program into the tariff reflected its conclusion that the utility was authorized to employ the practice if it so desired. See 428 U.S., at 594, and n. 31, 96 S.Ct., at 3118. The situation now before us is entirely different. The disciplinary rules reflect a clear articulation of the State's policy with regard to professional behavior. Moreover, as the instant case shows, the rules are subject to pointed re-examination by the policymaker the Arizona Supreme Court in enforcement proceedings. Our concern that federal policy is being unnecessarily and inappropriately subordinated to state policy is reduced in such a situation; we deem it significant that the state policy is so clearly and affirmatively expressed and that the State's supervision is so active.
21
We conclude that the Arizona Supreme Court's determination that appellants' Sherman Act claim is barred by the Parker v. Brown exemption must be affirmed.
III
The First Amendment
A.
22
Last Term, in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), the Court considered the validity under the First Amendment of a Virginia statute declaring that a pharmacist was guilty of 'unprofessional conduct' if he advertised prescription drug prices. The pharmacist would then be subject to a monetary penalty or the suspension or revocation of his license. The statute thus effectively prevented the advertising of prescription drug price information. We recognized that the pharmacist who desired to advertise did not wish to report any particularly newsworthy fact or to comment on any cultural, philosophical, or political subject; his desired communication was characterized simply: "I will sell you the X prescription drug at the Y price." Id., at 761, 96 S.Ct., at 1825. Nonetheless, we held that commercial speech of that kind was entitled to the protection of the First Amendment.
23
Our analysis began, ibid., with the observation that our cases long have protected speech even though it is in the form of a paid advertisement, Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); in a form that is sold for profit, Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); or in the form of a solicitation to pay or contribute money, New York Times Co. v. Sullivan, supra; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). If commercial speech is to be distinguished, it 'must be distinguished by its content.' 425 U.S., at 761, 96 S.Ct., at 1825. But a consideration of competing interests reinforced our view that such speech should not be withdrawn from protection merely because it proposed a mundane commercial transaction. Even though the speaker's interest is largely economic, the Court has protected such speech in certain contexts. See, e. g., NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). The listener's interest is substantial: the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. See Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975). And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. See FTC v. Procter & Gamble Co., 386 U.S. 568, 603-604, 87 S.Ct. 1224, 1242-1243, 18 L.Ed.2d 303 (1967) (Harlan, J., concurring). In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking. 425 U.S., at 761-765, 96 S.Ct., at 1825-1827.
24
Arrayed against these substantial interests in the free flow of commercial speech were a number of proffered justifications for the advertising ban. Central among them were claims that the ban was essential to the maintenance of professionalism among licensed pharmacists. It was asserted that advertising would create price competition that might cause the pharmacist to economize at the customer's expense. He might reduce or eliminate the truly professional portions of his services: the maintenance and packaging of drugs so as to assure their effectiveness, and the supplementation on occasion of the prescribing physician's advice as to use. Moreover, it was said, advertising would cause consumers to price-shop, thereby undermining the pharmacist's effort to monitor the drug use of a regular customer so as to ensure that the prescribed drug would not provoke an allergic reaction or be incompatible with another substance the customer was consuming. Finally, it was argued that advertising would reduce the image of the pharmacist as a skilled and specialized craftsman an image that was said to attract talent to the profession and to reinforce the good habits of those in it to that of a mere shopkeeper. Id., at 766-768, 96 S.Ct., at 1828-1829.
25
Although acknowledging that the State had a strong interest in maintaining professionalism among pharmacists, this Court concluded that the proffered justifications were inadequate to support the advertising ban. High professional standards were assured in large part by the close regulation to which pharmacists in Virginia were subject. Id., at 768, 96 S.Ct., at 1829. And we observed that 'on close inspection it is seen that the State's protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance.' Id., at 769, 96 S.Ct., at 1829. But we noted the presence of a potent alternative to this 'highly paternalistic' approach: 'That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.' Id., at 770, 96 S.Ct., at 1829. The choice between the dangers of suppressing information and the dangers arising from its free flow was seen as precisely the choice 'that the First Amendment makes for us.' Ibid. See also linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977).
26
We have set out this detailed summary of the Pharmacy opinion because the conclusion that Arizona's disciplinary rule is violative of the First Amendment might be said to flow a fortiori from it. Like the Virginia statutes, the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance. Because of the possibility, however, that the differences among professions might bring different constitutional considerations into play, we specifically reserved judgment as to other professions.17
27
In the instant case we are confronted with the arguments directed explicitly toward the regulation of advertising by licensed attorneys.
B
28
The issue presently before us is a narrow one. First, we need not address the peculiar problems associated with advertising claims relating to the quality of legal services. Such claims probably are not susceptible of precise measurement or verification and, under some circumstances, might well be deceptive or misleading to the public, or even false. Appellee does not suggest, nor do we perceive, that appellants' advertisement contained claims, extravagant or otherwise, as to the quality of services. Accordingly, we leave that issue for another day. Second, we also need not resolve the problems associated with in-person solicitation of clients at the hospital room or the accident site, or in any other situation that breeds undue influence by attorneys or their agents or 'runners.' Activity of that kind might well pose dangers of overreaching and misrepresentation not encountered in newspaper announcement advertising. Hence, this issue also is not before us. Third, we note that appellee's criticism of advertising by attorneys does not apply with much force to some of the basic factual content of advertising: information as to the attorney's name, address, and telephone number, office hours, and the like. The American Bar Association itself has a provision in its current Code of Professional Responsibility that would allow the disclosure of such information, and more, in the classified section of the telephone directory. DR 2-102(A)(6) (1976).18 We recognize, however, that an advertising diet limited to such spartan fare would provide scant nourishment.
29
The heart of the dispute before us today is whether lawyers also may constitutionally advertise the prices at which certain routine services will be performed. Numerous justifications are proffered for the restriction of such price advertising. We consider each in turn:
30
1. The Adverse Effect on Professionalism. Appellee places particular emphasis on the adverse effects that it feels price advertising will have on the legal profession. The key to professionalism, it is argued, is the sense of pride that involvement in the discipline generates. It is claimed that price advertising will bring about commercialization, which will undermine the attorney's sense of dignity and self-worth. The hustle of the marketplace will adversely affect the profession's service orientation, and irreparably damage the delicate balance between the lawyer's need to earn and his obligation selflessly to serve. Advertising is also said to erode the client's trust in his attorney: Once the client perceives that the lawyer is motivated by profit, his confidence that the attorney is acting out of a commitment to the client's welfare is jeopardized. And advertising is said to tarnish the dignified public image of the profession.
31
We recognize, of course, and commend the spirit of public service with which the profession of law is practiced and to which it is dedicated. The present Members of this Court, licensed attorneys all, could not feel otherwise. And we would have reason to pause if we felt that our decision today would undercut that spirit. But we find the postulated connection between advertising and the erosion of true professionalism to be severely strained. At its core, the argument presumes that attorneys must conceal from themselves and from their clients the real-life fact that lawyers earn their livelihood at the bar. We suspect that few attorneys engage in such self-deception.19 And rare is the client, moreover, even one of the modest means, who enlists the aid of an attorney with the expectation that his services will be rendered free of charge. See B. Christensen, Lawyers for People of Moderate Means 152-153 (1970). In fact, the American Bar Association advises that an attorney should reach 'a clear agreement with his client as to the basis of the fee charges to be made,' and that this is to be done '(a)s soon as feasible after a lawyer has been employed.' Code of Professional Responsibility EC 2-19 (1976). If the commercial basis of the relationship is to be promptly disclosed on ethical grounds, once the client is in the office, it seems inconsistent to condemn the candid revelation of the same information before he arrives at that office.
32
Moreover, the assertion that advertising will diminish the attorney's reputation in the community is open to question. Bankers and engineers advertise,20 and yet these professions are not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession.21 The absence of advertising may be seen to reflect the profession's failure to reach out and serve the community: Studies reveal that many persons do not obtain counsel even when they perceive a need because of the feared price of services22 or because of an inability to locate a competent attorney.23 Indeed, cynicism with regard to the profession may be created by the fact that it long has publicly eschewed advertising, while condoning the actions of the attorney who structures his social or civic associations so as to provide contacts with potential clients.
33
It appears that the ban on advertising originated as a rule of etiquette and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on 'trade' as unseemly. See H. Drinker, Legal Ethics, 5, 210-211 (1953).24 Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession. Id., at 211. But habit and tradition are not in themselves an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind. Since the belief that lawyers are somehow 'above' trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.
34
2. The Inherently Misleading Nature of Attorney Advertising. It is argued that advertising of legal services inevitably will be misleading (a) because such services are so individualized with regard to content and quality as to prevent informed comparison on the basis of an advertisement, (b) because the consumer of legal services is unable to determine in advance just what services he needs, and (c) because advertising by attorneys will highlight irrelevant factors and fail to show the relevant factor of skill.
35
We are not persuaded that restrained professional advertising by lawyers inevitably will be misleading. Although many services performed by attorneys are indeed unique, it is doubtful that any attorney would or could advertise fixed prices for services of that type.25 The only services that lend themselves to advertising are the routine ones: the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name, and the like the very services advertised by appellants.26 Although the precise service demanded in each task may vary slightly, and although legal services are not fungible, these facts do not make advertising misleading so long as the attorney does the necessary work at the advertised price.27 The argument that legal services are so unique that fixed rates cannot meaningfully be established is refuted by the record in this case: The appellee, State Bar itself sponsors a Legal Services Program in which the participating attorneys agree to perform services like those advertised by the appellants at standardized rates. App. 459-478. Indeed, until the decision of this Court in Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), the Maricopa County Bar Association apparently had a schedule of suggested minimum fees for standard legal tasks. App. 355. We thus find of little force the assertion that advertising is misleading because of an inherent lack of standardization in legal services.28
36
The second component of the argument that advertising ignores the diagnostic role fares little better.29 It is unlikely that many people go to an attorney merely to ascertain if they have a clean bill of legal health. Rather, attorneys are likely to be employed to perform specific tasks. Although the client may not know the detail involved in performing the task, he no doubt is able to identify the service he desires at the level of generality to which advertising lends itself.
37
The third component is not without merit: Advertising does not provide a complete foundation on which to select an attorney. But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision. The alternative the prohibition of advertising serves only to restrict the information that flows to consumers.30 Moreover, the argument assumes that the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information. We suspect the argument rests on an underestimation of the public. In any event, we view as dubious any justification that is based on the benefits of public ignorance. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 769-770, 96 S.Ct., at 1829-1830. Although, of course, the bar retains the power to correct omissions that have the effect of presenting an inaccurate picture, the preferred remedy is more disclosure, rather than less. If the naivete$ of the public will cause advertising by attorneys to be misleading, then it is the bar's role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective.
38
3. The Adverse Effect on the Administration of Justice. Advertising is said to have the undesirable effect of stirring up litigation.31 The judicial machinery is designed to serve those who feel sufficiently aggrieved to bring forward their claims. Advertising, it is argued, serves to encourage the assertion of legal rights in the courts, thereby undesirably unsettling societal repose. There is even a suggestion of barratry. See, e. g., Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U.Chi.L.Rev. 674, 675-676 (1958).
39
But advertising by attorneys is not an unmitigated source of harm to the administration of justice. It may offer great benefits. Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action.32 As the bar acknowledges, 'the middle 70% of our population is not being reached or served adequately by the legal profession.' ABA, Revised Handbook on Prepaid Legal Services 2 (1972).33 Among the reasons for this underutilization is fear of the cost, and an inability to locate a suitable lawyer. See nn. 22 and 23, supra. Advertising can help to solve this acknowledged problem: Advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. The disciplinary rule at issue likely has served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable. A rule allowing restrained advertising would be in accord with the bar's obligation to 'facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available.' ABA Code of Professional Responsibility EC 2-1 (1976).
40
4. The Undesirable Economic Effects of Advertising. It is claimed that advertising will increase the overhead costs of the profession, and that these costs then will be passed along to consumers in the form of increased fees. Moreover, it is claimed that the additional cost of practice will create a substantial entry barrier, deterring or preventing young attorneys from penetrating the market and entrenching the position of the bar's established members.
41
These two arguments seem dubious at best. Neither distinguishes lawyers from others, see Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 768, 96 S.Ct., at 1828, and neither appears relevant to the First Amendment. The ban on advertising serves to increase the difficulty of discovering the lowest cost seller of acceptable ability. As a result, to this extent attorneys are isolated from competition, and the incentive to price competitively is reduced. Although it is true that the effect of advertising on the price of services has not been demonstrated, there is revealing evidence with regard to products; where consumers have the benefit of price advertising, retail prices often are dramatically lower than they would be without advertising.34 It is entirely possible that advertising will serve to reduce, not advance, the cost of legal services to the consumer.35
42
The entry-barrier argument is equally unpersuasive. In the absence of advertising, an attorney must rely on his contacts with the community to generate a flow of business. In view of the time necessary to develop such contacts, the ban in fact serves to perpetuate the market position of established attorneys. Consideration of entry-barrier problems would urge that advertising be allowed so as to aid the new competitor in penetrating the market.
43
5. The Adverse Effect of Advertising on the Quality of Service. It is argued that the attorney may advertise a given 'package' of service at a set price, and will be inclined to provide, by indiscriminate use, the standard package regardless of whether it fits the client's needs.
44
Restraints on advertising, however, are an ineffective way of deterring shoddy work. An attorney who is inclined to cut quality will do so regardless of the rule on advertising. And the advertisement of a standardized fee does not necessarily mean that the services offered are undesirably standardized. Indeed, the assertion that an attorney who advertises a standard fee will cut quality is substantially undermined by the fixed-fee schedule of appellee's own prepaid Legal Services Program. Even if advertising leads to the creation of 'legal clinics' like that of appellants' clinics that emphasize standardized procedures for routine problems it is possible that such clinics will improve service by reducing the likelihood of error.
45
6. The Difficulties of Enforcement. Finally, it is argued that the wholesale restriction is justified by the problems of enforcement if any other course is taken. Because the public lacks sophistication in legal matters, it may be particularly susceptible to misleading or deceptive advertising by lawyers. After-the-fact action by the consumer lured by such advertising may not provide a realistic restraint because of the inability of the layman to assess whether the service he has received meets professional standards. Thus, the vigilance of a regulatory agency will be required. But because of the numerous purveyors of services, the overseeing of advertising will be burdensome.
46
It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point, and, at another, to assert that its members will seize the opportunity to mislead and distort. We suspect that, with advertising, most lawyers will behave as they always have: They will abide by their solemn oaths to uphold the integrity and honor of their profession and of the legal system. For every attorney who overreaches through advertising, there will be thousands of others who will be candid and honest and straightforward. And, of course, it will be in the latter's interest, as in other cases of misconduct at the bar, to assist in weeding out those few who abuse their trust.
47
In sum, we are not persuaded that any of the proffered justifications rise to the level of an acceptable reason for the suppression of all advertising by attorneys.
C
48
In the usual case involving a restraint on speech, a showing that the challenged rule served unconstitutionally to suppress speech would end our analysis. In the First Amendment context, the Court has permitted attacks on overly broad statutes without requiring that the person making the attack demonstrate that in fact his specific conduct was protected. See, e. g., Bigelow v. Virginia, 421 U.S., at 815-816, 95 S.Ct., at 2229; Gooding v. Wilson, 405 U.S. 518, 521-522, 92 S.Ct. 1103, 1105-1106, 31 L.Ed.2d 408 (1972); Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965). Having shown that the disciplinary rule interferes with protected speech, appellants ordinarily could expect to benefit regardless of the nature of their acts.
49
The First Amendment overbreadth doctrine, however, represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court. See, e. g., Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (1973); United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960); Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The reason for the special rule in First Amendment cases is apparent: An overbroad statute might serve to chill protected speech. First Amendment interests are fragile interests, and a person who contemplates protected activity might be discouraged by the in terrorem effect of the statute. See NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Indeed, such a person might choose not to speak because of uncertainty whether his claim of privilege would prevail if challenged. The use of overbreadth analysis reflects the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted.
50
But the justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context. As was acknowledged in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 771 n. 24, 96 S.Ct., at 1830, there are 'commonsense differences' between commercial speech and other varieties. See also id., at 775-781, 96 S.Ct., at 1832-1835 (concurring opinion). Since advertising is linked to commercial well-being, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation. See id., at 771-772 n. 24, 96 S.Ct. at 1830-1831. Moreover, concerns for uncertainty in determining the scope of protection are reduced; the advertiser seeks to disseminate information about a product or service that he provides, and presumably he can determine more readily than others whether his speech is truthful and protected. Ibid. Since overbreadth has been described by this Court as 'strong medicine,' which 'has been employed . . . sparingly and only as a last resort,' Broadrick v. Oklahoma, 413 U.S., at 613, 93 S.Ct., at 2916, we decline to apply it to professional advertising, a context where it is not necessary to further its intended objective. Cf. Bigelow v. Virginia, 421 U.S., at 817-818, 95 S.Ct., at 2230.
51
Is, then, appellants' advertisement outside the scope of basic First Amendment protection? Aside from general claims as to the undesirability of any advertising by attorneys, a matter considered above, appellee argues that appellants' advertisement is misleading, and hence unprotected, in three particulars: (a) the advertisement makes reference to a 'legal clinic,' an allegedly undefined term; (b) the advertisement claims that appellants offer services at 'very reasonable' prices, and, at least with regard to an uncontested divorce, the advertised price is not a bargain; and (c) the advertisement does not inform the consumer that he may obtain a name change without the services of an attorney. Tr. of Oral Arg. 56-57. On this record, these assertions are unpersuasive. We suspect that the public would readily understand the term 'legal clinic' if, indeed, it focused on the term at all to refer to an operation like that of appellants' that is geared to provide standardized and multiple services. In fact, in his deposition the president of the State Bar of Arizona observed that there was a committee of the bar 'exploring the ways in which the legal clinic concept can be properly developed.' App. 375; see id., at 401. See also id., at 84-85 (testimony of appellants). And the clinical concept in the sister profession of medicine surely by now is publicly acknowledged and understood.
52
As to the cost of an uncontested divorce, appellee's counsel stated at oral argument that this runs from $150 to $300 in the area. Tr. of Oral Arg. 58. Appellants advertised a fee of $175 plus a $20 court filing fee, a rate that seems 'very reasonable' in light of the customary charge. Appellee's own Legal Services Program sets the rate for an uncontested divorce at $250. App. 473. Of course, advertising will permit the comparison of rates among competitors, thus revealing if the rates are reasonable.
53
As to the final argument the failure to disclose that a name change might be accomplished by the client without the aid of an attorney we need only note that most legal services may be performed legally by the citizen for himself. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); ABA Code of Professional Responsibility EC 3-7 (1976). The record does not unambiguously reveal some of the relevant facts in determining whether the nondisclosure is misleading, such as how complicated the procedure is and whether the State provides assistance for laymen. The deposition of one appellant, however, reflects that when he ascertained that a name change required only the correction of a record or the like, he frequently would send the client to effect the change himself.36 App. 112.
54
We conclude that it has not been demonstrated that the advertisement at issue could be suppressed.
IV
55
In holding that advertising by attorneys may not be subjected to blanket suppression, and that the advertisement at issue is protected, we, of course, do not hold that advertising by attorneys may not be regulated in any way. We mention some of the clearly permissible limitations on advertising not foreclosed by our holding.
56
Advertising that is false, deceptive, or misleading of course is subject to restraint. See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S., at 771-772, and n. 24, 96 S.Ct., at 1830-1831. Since the advertiser knows his product and has a commercial interest in its dissemination, we have little worry that regulation to assure truthfulness will discourage protected speech. Id., at 771-772, n. 24, 96 S.Ct. at 1830. And any concern that strict requirements for truthfulness will undesirably inhibit spontaneity seems inapplicable because commercial speech generally is calculated. Indeed, the public and private benefits from commercial speech derive from confidence in its accuracy and reliability. Thus, the leeway for untruthful or misleading expression that has been allowed in other contexts has little force in the commercial arena. Compare Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-341, 94 S.Ct. 2997, 3006-3007, 41 L.Ed.2d 789 (1974), and Cantwell v. Connecticut, 310 U.S., at 310, 60 S.Ct., at 906, with NLRB v. Gissel Packing Co., 395 U.S., at 618, 89 S.Ct., at 1942. In fact, because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising.37 For example, advertising claims as to the quality of services a matter we do not address today are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction. Similar objections might justify restraints on in-person solicitation. We do not foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like, might be required of even an advertisement of the kind ruled upon today so as to assure that the consumer is not misled. In sum, we recognize that many of the problems in defining the boundary between deceptive and nondeceptive advertising remain to be resolved, and we expect that the bar will have a special role to play in assuring that advertising by attorneys flows both freely and cleanly.
57
As with other varieties of speech, it follows as well that there may be reasonable restrictions on the time, place, and manner of advertising. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 771, 96 S.Ct., at 1830. Advertising concerning transactions that are themselves illegal obviously may be suppressed. See Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973). And the special problems of advertising on the electronic broadcast media will warrant special consideration. Cf. Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (DC 1971), summarily aff'd sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000, 92 S.Ct. 1289, 31 L.Ed.2d 472 (1972).
58
The constitutional issue in this case is only whether the State may prevent the publication in a newspaper of appellants' truthful advertisement concerning the availability and terms of routine legal services. We rule simply that the flow of such information may not be restrained, and we therefore hold the present application of the disciplinary rule against appellants to be violative of the First Amendment.
59
The judgment of the Supreme Court of Arizona is therefore affirmed in part and reversed in part.
60
It is so ordered.
APPENDIX TO OPINION OF THE COURT
61
[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]
62
Mr. Chief Justice BURGER, concurring in part and dissenting in part.
63
I am in general agreement with Mr. Justice POWELL's analysis and with Part II of the Court's opinion. I particularly agree with Mr. Justice POWELL's statement that "today's decision will effect profound changes in the practice of law." Post, at 389. Although the exact effect of those changes cannot now be known, I fear that they will be injurious to those whom the ban on legal advertising was designed to protect -- the members of the general public in need of legal services.
64
Some Members of the Court apparently believe that the present case is controlled by our holding one year ago in Virginia Pharmacy Board v. Consumer Council, 425 U.S. 748 (1976). However, I had thought that we made most explicit that our holding there rested on the fact that the advertisement of standardized, prepackaged, name-brand drugs was at issue, Id., at 773 n. 25. In that context, the prohibition on price advertising, which had served a useful function in the days of individually compounded medicines, was no longer tied to the conditions which had given it birth. The same cannot be said with respect to legal services which, by necessity, must vary greatly from case to case. Indeed, I find it difficult, if not impossible, to identify categories of legal problems or services which are fungible in nature. For example, Mr. Justice POWELL persuasively demonstrates the fallacy of any notion that even an uncontested divorce can be "standard." Post, at 392-394. A "reasonable charge" for such a divorce could be $195, as the appellants wish to advertise, or it could reasonably be a great deal more, depending on such variables as child custody, alimony, support, or any property settlement. Because legal services can rarely, if ever, be "standardized" and because potential clients rarely know in advance what services they do in fact need, price advertising can never give the public an accurate picture on which to base its selection of an attorney. Indeed, in the context of legal services, such incomplete information could be worse than no information at all.1 It could become a trap for the unwary.
65
The Court's opinion largely disregards these facts on the unsupported assumptions that attorneys will not advertise anything but "routine" services -- which the Court totally fails to identify or define -- or, if they do advertise, that the bar and the courts will be able to protect the public from those few practitioners who abuse their trust. The former notion is highly speculative and, of course, does nothing to solve the problems that this decision will create; as to the latter, the existing administrative machinery of both the profession and the courts has proved wholly inadequate to police the profession effectively, See ABA Special Committee On Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement (1970). To impose the enormous new regulatory burdens called for by the Court's decision on the presently deficient machinery of the bar and courts is unrealistic; it is almost predictable that it will create problems of unmanageable proportions. The Court thus takes a 'great leap' into an unexplored, sensitive regulatory area where the legal profession and the courts have not yet learned to crawl, let alone stand up or walk. In my view, there is no need for this hasty plunge into a problem where not even the wisest of experts if such experts exist can move with sure steps.
66
To be sure, the public needs information concerning attorneys, their work, and their fees. At the same time, the public needs protection from the unscrupulous or the incompetent practitioner anxious to prey on the uninformed. It seems to me that these twin goals can best be served by permitting the organized bar to experiment with and perfect programs which would announce to the public the probable range of fees for specifically defined services and thus give putative clients some idea of potential cost liability when seeking out legal assistance.2 However, even such programs should be confined to the known and knowable, e. g., the truly 'routine' uncontested divorce which is defined to exclude any dispute over alimony, property rights, child custody or support, and should make clear to the public that the actual fee charged in any given case will vary according to the individual circumstances involved, see ABA Code of Professional Responsibility DR 2-106(B) (1976), in order to insure that the expectations of clients are not unduly inflated. Accompanying any reform of this nature must be some type of effective administrative procedure to hear and resolve the grievances and complaints of disappointed clients.
67
Unfortunately, the legal profession in the past has approached solutions for the protection of the public with too much caution, and, as a result, too little progress has been made. However, as Mr. Justice POWELL points out, post, at 398-399, the organized bar has recently made some reforms in this sensitive area and more appear to be in the offing. Rather than allowing these efforts to bear fruit, the Court today opts for a Draconian 'solution' which I believe will only breed more problems than it can conceivably resolve.
68
Mr. Justice POWELL, with whom Mr. Justice STEWART joins, concurring in part and dissenting in part.
69
I agree with the Court that appellants' Sherman Act claim is barred by the Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed.2d 315 (1943), exemption and therefore join Part II of the Court's opinion. But I cannot join the Court's holding that under the First Amendment 'truthful' newspaper advertising of a lawyer's prices for 'routine legal services' may not be restrained. Ante, at 384. Although the Court appears to note some reservations (mentioned below), it is clear that within undefined limits today's decision will effect profound changes in the practice of law, viewed for centuries as a learned profession. The supervisory power of the courts over members of the bar, as officers of the courts, and the authority of the respective States to oversee the regulation of the profession have been weakened. Although the Court's opinion professes to be framed narrowly, and its reach is subject to future clarification, the holding is explicit and expansive with respect to the advertising of undefined 'routine legal services.' In my view, this result is neither required by the First Amendment, nor in the public interest.
70
* Appellants, two young members of the Arizona Bar, placed an advertisement in a Phoenix newspaper apparently for the purpose of testing the validity of Arizona's ban on advertising by attorneys. The advertisement, reproduced ante, at 385, stated that appellants' 'Legal Clinic' provided 'legal services at very reasonable fees,' and identified the following four legal services, indicating an exact price for each:
71
(1) Divorce or legal separation uncontested (both spouses sign papers): $175 plus $20 court filing fee.
72
(2) Preparation of all court papers and instructions on how to do your own simple uncontested divorce: $100.
73
(3) Adoption uncontested severance proceeding: $225 plus approximately $10 publication cost.
74
(4) Bankruptcy non-business, no contested proceedings individual: $250 plus $55 court filing fee; wife and husband: $300 plus $110 court filing fee.
75
(5) Change of Name $95 plus $20 court filing fee.
76
The advertisement also stated that information regarding other types of cases would be furnished on request. Since it is conceded that this advertisement violated Disciplinary Rule 2-101(B), incorporated in Rule 29(a) of the Supreme Court of Arizona,1 the question before us is whether the application of the disciplinary rule to appellants' advertisement violates the First Amendment.
77
The Court finds the resolution of that question in our recent decision in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). In that case, we held unconstitutional under the First and Fourteenth Amendments a Virginia statute declaring it unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs. We concluded that commercial speech to the effect that 'I will sell you the X prescription drug at the Y price' was entitled to certain protection under the First Amendment, and found that the proffered justifications were inadequate to support the ban on price advertising. But we were careful to note that we were dealing in that case with price advertising of a standardized product. The Court specifically reserved judgment as to the constitutionality of state regulation of price advertising with respect to professional services:
78
'We stress that we have considered in this case the regulation of commercial advertising by pharmacists. Although we express no opinion as to other professions, the distinctions, historical and functional, between professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising.' Id., at 773 n. 25, 96 S.Ct., at 1831 (emphasis in original).2
79
This case presents the issue so reserved, and the Court resolves it on the assumption that what it calls 'routine' legal services are essentially no different for purposes of First Amendment analysis from prepackaged prescription drugs. In so holding, the Court fails to give appropriate weight to the two fundamental ways in which the advertising of professional services presents a different issue from that before the Court with respect to tangible products: the vastly increased potential for deception and the enhanced difficulty of effective regulation in the public interest.
A.
80
It has long been thought that price advertising of legal services inevitably will be misleading because such services are individualized with respect to content and quality and because the lay consumer of legal services usually does not know in advance the precise nature and scope of the services he requires. Ante, at 372. Although the Court finds some force in this reasoning and recognizes that 'many services performed by attorneys are indeed unique,' its first answer is the optimistic expression of hope that few lawyers 'would or could advertise fixed prices for services of that type.' Ibid. But the Court's basic response in view of the acknowledged potential for deceptive advertising of 'unique' services is to divide the immense range of the professional product of lawyers into two categories: 'unique' and 'routine.' The only insight afforded by the opinion as to how one draws this line is the finding that services similar to those in appellants' advertisement are routine: 'the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name, and the like.' Ibid. What the phrase 'the like' embraces is not indicated. But the advertising of such services must, in the Court's words, flow 'both freely and cleanly.' Ante, at 384.
81
Even the briefest reflection on the tasks for which lawyers are trained and the variation among the services they perform should caution against facile assumptions that legal services can be classified into the routine and the unique. In most situations it is impossible both for the client and the lawyer to identify with reasonable accuracy in advance the nature and scope of problems that may be encountered even when handling a matter that at the outset seems routine. Neither quantitative nor qualitative measurement of the service actually needed is likely to be feasible in advance.3
82
This definitional problem is well illustrated by appellants' advertised willingness to obtain uncontested divorces for $195 each. A potential client can be grievously misled if he reads the advertised service as embracing all of his possible needs. A host of problems are implicated by divorce. They include alimony; support and maintenance for children; child custody; visitation rights; interests in life insurance, community property, tax refunds, and tax liabilities; and the disposition of other property rights.4 The processing of court papers apparently the only service appellants provide for $100 is usually the most straightforward and least demanding aspect of the lawyer's responsibility in a divorce case. More important from the viewpoint of the client is the diagnostic and advisory function: the pursuit of relevant inquiries of which the client would otherwise be unaware, and advice with respect to alternative arrangements that might prevent irreparable dissolution of the marriage or otherwise resolve the client's problem.5 Although those professional functions are not included within appellants' packaged routine divorce, they frequently fall within the concept of 'advice' with which the lay person properly is concerned when he or she seeks legal counsel. The average lay person simply has no feeling for which services are included in the packaged divorce, and thus no capacity to judge the nature of the advertised product.6 As a result, the type of advertisement before us inescapably will mislead many who respond to it. In the end, it will promote distrust of lawyers and disrespect for our own system of justice.
83
The advertising of specified services at a fixed price is not the only infirmity of the advertisement at issue.7 Appellants also assert that these services are offered at 'very reasonable fees.' That Court finds this to be an accurate statement since the advertised fee fell at the lower end of the range of customary charges. But the fee customarily charged in the locality for similar services has never been considered the sole determinant of the reasonableness of a fee.8 This is because reasonableness reflects both the quantity and quality of the service. A $195 fee may be reasonable for one divorce and unreasonable for another; and a $195 fee may be a reasonable when charged by an experienced divorce lawyer and unreasonable when charged by a recent law school graduate. For reasons that are not readily apparent, the Court today discards the more discriminating approach which the profession long has used to judge the reasonableness of a fee, and substitutes an approach based on market averages. Whether a fee is 'very reasonable' is a matter of opinion, and not a matter of verifiable fact as the Court suggests. One unfortunate result of today's decision is that lawyers may feel free to use a wide variety of adjectives such as 'fair,' 'moderate,' 'low-cost,' or 'lowest in town' to describe the bargain they offer to the public.
B
84
Even if one were to accept the view that some legal services are sufficiently routine to minimize the possibility of deception, there nonetheless remains a serious enforcement problem. The Court does recognize some problems. It notes that misstatements that may be immaterial in 'other advertising may be found quite inappropriate in legal advertising' precisely because 'the public lacks sophistication concerning legal services.' Ante, at 383. It also recognizes that 'advertising claims as to the quality of services . . . are not susceptible of measurement or verification' and therefore 'may be so likely to be misleading as to warrant restriction.' Ante, at 383-384. After recognizing that problems remain in defining the boundary between deceptive and nondeceptive advertising, the Court then observes that the bar may be expected to have 'a special role to play in assuring that advertising by attorneys flows both freely and cleanly.' Ante, at 384.
85
The Court seriously understates the difficulties, and overestimates the capabilities of the bar or indeed of any agency public or private to assure with a reasonable degree of effectiveness that price advertising can at the same time be both unrestrained and truthful. Ibid. There are some 400,000 lawyers in this country. They have been licensed by the States, and the organized bars within the States operating under codes approved by the highest courts acting pursuant to statutory authority have had the primary responsibility for assuring compliance with professional ethics and standards. The traditional means have been disciplinary proceedings conducted initially by voluntary bar committees subject to judicial review. In view of the sheer size of the profession, the existence of a multiplicity of jurisdictions, and the problems inherent in the maintenance of ethical standards even of a profession with established traditions, the problem of disciplinary enforcement in this country has proved to be extremely difficult. See generally ABA, Special Committee on Evaluation of Disciplinary Enforcement Problems and Recommendations in Disciplinary Enforcement (1970).
86
The Court's almost casual assumption that its authorization of price advertising can be policed effectively by the bar reflects a striking underappreciation of the nature and magnitude of the disciplinary problem. The very reasons that tend to make price advertising of services inherently deceptive make its policing wholly impractical. With respect to commercial advertising, Mr. Justice STEWART, concurring in Virginia Pharmacy, noted that since 'the factual claims contained in commercial price or product advertisements relate to tangible goods or services, they may be tested empirically and corrected to reflect the truth.' 425 U.S., at 780, 96 S.Ct., at 1835. But there simply is no way to test 'empirically' the claims made in appellants' advertisement of legal services. These are serious difficulties in determining whether the advertised services fall within the Court's undefined category of 'routine services'; whether they are described accurately and understandably; and whether appellants' claim as to reasonableness of the fees is accurate. These are not factual questions for which there are 'truthful' answers; in most instances, the answers would turn on relatively subjective judgments as to which there could be wide differences of opinion. There difficulties with appellants' advertisement will inhere in any comparable price advertisement of specific legal services. Even if public agencies were established to oversee professional price advertising, adequate protection of the public from deception, and of ethical lawyers from unfair competition, could prove to be a wholly intractable problem.
II
87
The Court emphasizes the need for information that will assist persons desiring legal services to choose lawyers. Under our economic system, advertising is the most commonly used and useful means of providing information as to goods and other services, but it generally has not been used with respect to legal and certain other professional services. Until today, controlling weight has been given to the danger that general advertising of such services too often would tend to mislead rather than inform. Moreover, there has been the further concern that the characteristics of the legal profession thought beneficial to society a code of professional ethics, an imbued sense of professional and public responsibility, a tradition of self-discipline, and duties as officers of the courts would suffer if the restraints on advertising were significantly diluted.
88
Pressures toward some relaxation of the proscription against general advertising have gained force in recent years with the increased recognition of the difficulty that low- and middle-income citizens experience in finding counsel willing to serve at reasonable prices. The seriousness of this problem has not been overlooked by the organized bar. At both the national and state levels, the bar has addressed the need for expanding the availability of legal services in a variety of ways, including: (i) group legal service plans, increasingly used by unions, cooperatives, and trade associations; (ii) lawyer referral plans operated by local and state bars; (iii) bar-sponsored legal clinics; (iv) public service law firms; and (v) group insurance or prepaid service plans. Notable progress has been made over the past two decades in providing counsel for indigents charged with crime. Not insignificant progress also has been made through bar-sponsored legal aid and, more recently, the Federal Legal Services Corporation in providing counsel for indigents in civil cases. But the profession recognizes that less success has been achieved in assuring that persons who can afford to pay modest fees have access to lawyers competent and willing to represent them.9
89
Study and experimentation continue. Following a series of hearings in 1975, the American Bar Association amended its Code of Professional Responsibility to broaden the information, when allowed by state law, that a lawyer may provide in approved means of advertising. DR 2-102 (1976). In addition to the customary data published in legal directories, the amended regulation authorizes publication of the lawyer's fee for an initial consultation, the fact that other fee information is available on specific request, and the willingness of the attorney to accept credit cards or other credit arrangements. The regulation approves placement of such advertisements in the classified section of telephone directories, in the customary law lists and legal directories, and also in directories of lawyers prepared by consumer and other groups.
90
The Court observes, and I agree, that there is nothing inherently misleading in the advertisement of the cost of an initial consultation. Indeed, I would not limit the fee information to the initial conference. Although the skill and experience of lawyers vary so widely as to negate any equivalence between hours of service by different lawyers, variations in quality of service by duly licensed lawyers are inevitable. Lawyers operate, at least for the purpose of internal control and accounting on the basis of specified hourly rates, and upon request or in an appropriate case most lawyers are willing to undertake employment at such rates. The advertisement of these rates in an appropriate medium, duly designated, would not necessarily be misleading if this fee information also made clear that the total charge for the representation would depend on the number of hours devoted to the client's problem a variable difficult to predict. Where the price content of the advertisement is limited to the finite item of rate per hour devoted to the client's problem, the likelihood of deceiving or misleading is considerably less than when specific services are advertised at a fixed price.
III
91
Although I disagree strongly with the Court's holding as to price advertisements of undefined and I believe undefinable routine legal services, there are reservations in its opinion worthy of emphasis since they may serve to narrow its ultimate reach. First, the Court notes that it has not addressed 'the peculiar problems associated with advertising claims relating to the quality of legal services.' Ante, at 366. There are inherent questions of quality in almost any type of price advertising by lawyers, and I do not view appellants' advertisement as entirely free from quality implications. Nevertheless the Court's reservation in this respect could be a limiting factor.
92
Second, as in Virginia Pharmacy, the Court again notes that there may be reasonable restrictions on the time, place, and manner of commercial price advertising. In my view, such restrictions should have a significantly broader reach with respect to professional services than as to standardized products. This Court long has recognized the important state interests in the regulation of professional advertising. Head v. New Mexico Board, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Semler v. Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086 (1935).10 And as to lawyers, the Court recently has noted that '(t)he interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been 'officers of the courts."11 Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572 (1975). Although the opinion today finds these interest insufficient to justify prohibition of all price advertising, the state interests recognized in these cases should be weighed carefully in any future consideration of time, place, and manner restrictions.12
93
Finally, the Court's opinion does not 'foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like, might be required of even an advertisement of the kind ruled upon today so as to assure that the consumer is not misled.' Ante, at 384. I view this as at least some recognition of the potential for deception inherent in fixed price advertising of specific legal services. This recognition, though ambiguous in light of other statements in the opinion, may be viewed as encouragement to those who believe—as I do—that if we are to have price advertisement of legal services, the public interest will require the most particularized regulation.
IV
94
The area into which the Court now ventures has, until today, largely been left to self-regulation by the profession within the framework of canons or standards of conduct prescribed by the respective States and enforced where necessary by the courts. The problem of bringing clients and lawyers together on a mutually fair basis, consistent with the public interest, is as old as the profession itself. It is one of considerable complexity, especially in view of the constantly evolving nature of the need for legal services. The problem has not been resolved with complete satisfaction despite diligent and thoughtful efforts by the organized bar and others over a period of many years, and there is no reason to believe that today's best answers will be responsive to future needs.
95
In this context, the Court's imposition of hard and fast constitutional rules as to price advertising is neither required by precedent nor likely to serve the public interest. One of the great virtues of federalism is the opportunity it affords for experimentation and innovation, with freedom to discard or amend that which proves unsuccessful or detrimental to the public good. The constitutionalizing—indeed the affirmative encouraging—of competitive price advertising of specified legal services will substantially inhibit the experimentation that has been underway and also will limit the control heretofore exercised over lawyers by the respective States.
96
I am apprehensive, despite the Court's expressed intent to proceed cautiously, that today's holding will be viewed by tens of thousands of lawyers as an invitation—by the public-spirited and the selfish lawyers alike—to engage in competitive advertising on an escalating basis. Some lawyers maygain temporary advantages; others will suffer from the economic power of stronger lawyers, or by the subtle deceit of less scrupulous lawyers.13 Some members of the public may benefit marginally, but the risk is that many others will be victimized by simplistic price advertising of professional services 'almost infinite in variety and nature ....' Virginia Pharmacy Board, 425 U.S., at 773 n. 25, 96 S.Ct., at 1831. Until today, in the long history of the legal profession, it was not thought that this risk of public deception was required by the marginal First Amendment interests asserted by the Court.
97
Mr. Justice REHNQUIST, dissenting in part.
98
I join in Part II of the Court's opinion holding that appellant's Sherman Act claim is barred by the Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), state-action exemption. Largely for the reasons set forth in my dissent in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 781, 96 S.Ct. 1817, 1835, 48 L.Ed.2d 346 (1976), however, I dissent from Part III because I cannot agree that the First Amendment is infringed by Arizona's regulation of the essentially commercial activity of advertising legal services. Valentive v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942); Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951). See Pittsburgh Press Co. v. Human Relations Commission, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973).
99
I continue to believe that the First Amendment speech provision, long regarded by this Court as a sanctuary for expressions of public importance or intellectual interest, is demeaned by invocation to protect advertisements of goods and services. I would hold quite simply that the appellants' advertisement, however truthful or reasonable it may be, is not the sort of expression that the Amendment was adopted to protect.
100
I think my Brother POWELL persuasively demonstrates in his opinion that the Court's opinion offers very little guidance as to the extent or nature of permissible state regulation of professions such as law and medicine. I would join his opinion except for my belief that once the Court took the first step down the 'slippery slope' in Virginia Pharmacy Board, supra, the possibility of understandable and workable differentiations between protected speech and unprotected speech in the field of advertising largely evaporated. Once the exception of commercial speech from the protection of the First Amendment which had been established by Valentine v. Chrestensen, supra, was abandoned, the shift to case-by-case adjudication of First Amendment claims of advertisers was a predictable consequence.
101
While I agree with my Brother POWELL that the effect of today's opinion on the professions is both unfortunate and not required by the First and Fourteenth Amendments, I cannot join the implication in his opinion that some forms of legal advertising may be constitutionally protected. The Valentine distinction was constitutionally sound and practically workable, and I am still unwilling to take even one step down the 'slippery slope' away from it.
102
I therefore join Parts I and II of the Court's opinion, but dissent from Part III and from the judgment.
1
See Bigelow v. Virginia, 421 U.S. 809, 811, 95 S.Ct. 2222, 2227, 44 L.Ed.2d 600 (1975); Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939).
2
Each appellant is a 1972 graduate of Arizona State University College of Law. Mr. Bates was named by the faculty of that law school as the outstanding student of his class; Mr. O'Steen graduated cum laude. App. 220-221.
3
Rule 27(a) of the Supreme Court of Arizona, 17A Ariz.Rev.Stat., pp. 84-85 (1973), reads in part:
'1. In order to advance the administration of justice according to law, . . . the Supreme Court of Arizona does hereby perpetuate, create and continue under the direction and control of this Court an organization known as the State Bar of Arizona, and all persons now or hereafter licensed in this state to engage in the practice of law shall be members of the State Bar of Arizona in accordance with the rules of this Court. . . .'
'3. No person shall practice law in this state or hold himself out as one who may practice law in this state unless he is an active member of the state bar.'
See Ariz.Const., Art. 3; Ariz.Rev.Stat. §§ 32-201, 32-237, 32-264 (1976). The Arizona Bar, thus, is an integrated one. See Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961).
4
The office benefited from an increase in business after the appearance of the advertisement. App. 235-236, 479-480. It is doubtful, however, whether the increase was due solely to the advertisement, for the advertising itself prompted several news stories. Id., at 229. It might be expected, nonetheless, that advertising will increase business. See Hobbs, Lawyer Advertising: A Good Beginning but Not Enough, 62 A.B.A.J. 735, 736 (1976) (lawyer referral service that advertised referred more than 11 times as many clients as one that did not advertise in another city of comparable size).
5
The remainder of subdivision (B) states exceptions to the general prohibition:
'However, a lawyer recommended by, paid by, or whose legal services are furnished by, a qualified legal assistance organization may authorize or permit or assist such organization to use means of dignified commercial publicity, which does not identify any lawyer by name, to describe the availability or nature of its legal services or legal service benefits. This rule does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name:
'(1) In political advertisements when his professional status is germane to the political campaign or to a political issue.
'(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.
'(3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.
'(4) In and on legal documents prepared by him.
'(5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof.
'(6) In communications by a qualified legal assistance organization, along with the biographical information permitted under DR 2-102(A)(6) (biographical information that may be listed 'in a reputable law list or legal directory'), directed to a member of beneficiary of such organization.'
6
The plurality opinion represented the views of two of the five justices that compose the Supreme Court of Arizona Ariz.Const., Art. 6, § 2; Ariz.Rev.Stat. § 12-101 (1956). It is evident, however, that a majority adhered to the plurality's exposition of the law. One opinion, although styled a dissent, stated that the author agreed with the plurality opinion 'in all respects' except for the reduction in punishment. One justice, specially concurring, stated that he agreed 'with much of the law and many of the comments expressed by the majority.' The opinion of the remaining justice is discussed in the text.
7
But see United States v. Gasoline Retailers Assn., 285 F.2d 688, 691 (CA7 1961); cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 221-222, 60 S.Ct. 811, 843, 84 L.Ed. 1129 (1940); United States v. National Society of Professional Engineers., 181 U.S.App.D.C. 41, 555 F.2d 978 (1977) (ethical prohibition on members of society from submitting competitive bids for engineering services violates Sherman Act).
8
See also Head v. New Mexico Board, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963). The Court did not resolve a First Amendment issue in any of these cases. The advertising restrictions were upheld in the face of challenges based on due process, equal protection, and interference with interstate commerce. Although the First Amendment issue was raised in Head, the Court refused to consider it because it had been neither presented to the state courts nor reserved in the notice of appeal. Id., at 432-433, n. 12, 83 S.Ct., at 1764-1765.
9
Appellants also unsuccessfully challenged the rule on equal protection and vagueness grounds and asserted that the disciplinary procedures violated due process. These contentions are not made here.
10
Mr. Justice REHNQUIST stayed the order of censure pending final determination of the matter by this Court.
11
We note, moreover, that the Court's opinion in Goldfarb concluded with the observation that '(i)n holding that certain anticompetitive conduct by lawyers is within the reach of the Sherman Act we intend no diminution of the authority of the State to regulate its professions.' 421 U.S., at 793, 95 S.Ct., at 2016. Allowing the instant Sherman Act challenge to the disciplinary rule would have precisely that undesired effect.
12
Rule 29(a) of the Supreme Court of Arizona, 17A Ariz.Rev.Stat., p. 26 (Supp. 1976), provides:
'The duties and obligations of members (of the bar) shall be as prescribed by the Code of Professional Responsibility of the American Bar Association, effective November 1, 1970, as amended by this Court.' The challenged rule, DR 2-101(B), is now identical with the present version of the parallel rule, also numbered DR 2-101(B), of the ABA Code of Professional Responsibility, as amended to August 1976.
13
Mr. Justice Stevens, in a portion of his opinion in Cantor that was joined by Brennan, White, and Marshall, JJ., observed the Parker v. Brown was a suit against public officials, whereas in Cantor the claims were directed against only a private defendant. 428 U.S., at 585-592, 600-601, 96 S.Ct., at 3114-3117, 3121-3122. The dissenters in Cantor would have applied the state-action exemption regardless of the identity of the defendants. Id., at 615-617, 96 S.Ct., at 3129 3130 (Stewart, J., joined by Powell and Rehnquist, JJ.).
14
Cohen v. Hurley, in other respects, has been overruled. Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967).
15
The limitation on advertising by attorneys in Arizona seems to have commenced in 1919 with the incorporation by reference of the American Bar Association's 1908 Canons of Professional Ethics into Arizona's statutory law. 1919 Ariz.Sess.Laws, c. 158.
16
Indeed, our decision today on the Sherman Act issue was presaged in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 770, 96 S.Ct. 1817, 1829, 48 L.Ed.2d 346 (1976). We noted there: 'Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. Cf. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943).'
17
'We stress that we have considered in this case the regulation of commercial advertising by pharmacists. Although we express no opinion as to other professions, the distinctions, historical and functional, between professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising.' 425 U.S., at 773 n. 25, 96 S.Ct., at 1831 (emphasis in original). See id., at 773-775, 96 S.Ct., at 1831-1832 (concurring opinion).
18
The disciplinary rule, after referring to a listing in 'a reputable law list,' legal directory, or classified section of a telephone company directory, states:
'The published data may include only the following: name, including name of law firm and names of professional associates; addresses and telephone numbers; one or more fields of law in which the lawyer or law firm concentrates, to the extent not prohibited by the authority having jurisdiction under state law over the subject; a statement that practice is limited to one or more fields of law, to the extent not prohibited by the authority having jurisdiction under state law over the subject of limitation of practice by lawyers; a statement that the lawyer or law firm specializes in a particular field of law or law practice, to the extent permitted by the authority having jurisdiction under state law over the subject of specialization by lawyers and in accordance with rules prescribed by that authority; date and place of birth; date and place of admission to the bar of state and federal courts; schools attended, with dates of graduation, degrees, and other scholastic distinctions; public or quasi-public offices; military service; posts of honor; legal authorships; legal teaching positions; memberships, offices, committee assignments, and section memberships in bar associations; memberships and offices in legal fraternities and legal societies; technical and professional licenses; memberships in scientific, technical and professional associations and societies; foreign language ability; names and addresses of references, and, with their consent, names of clients regularly represented; whether credit cards or other credit arrangements are accepted; office and other hours of availability; a statement of legal fees for an initial consultation or the availability upon request of a written schedule of fees or an estimate of the fee to be charged for the specific services; provided, all such published data shall be disseminated only to the extent and in such format and language uniformly applicable to all lawyers, as prescribed by the authority having jurisdiction by state law over the subject. This proviso is not applicable in any state unless and until it is implemented by such authority in that state.'
19
Counsel for the appellee at oral argument readily stated: 'We all know that law offices are big businesses, that they may have billion-dollar or million-dollar clients, they're run with computers, and all the rest. And so the argument may be made that to term them noncommercial is sanctimonious humbug.' Tr. of Oral Arg. 64.
20
See B. Christensen, Lawyers for People of Moderate Means 151-152 (1970); Note, Advertising Solicitation and the Profession's Duty to Make Legal Counsel Available, 81 Yale L.J. 1181, 1190 (1972). Indeed, it appears that even the medical profession now views the alleged adverse effect of advertising in a somewhat different light from the appellee. A Statement of the Judicial Council of the American Medical Association provides in part:
'Advertising The Principles (of Medical Ethics) do not proscribe advertising; they proscribe the solicitation of patients. . . . The public is entitled to know the names of physicians, the type of their practices, the location of their offices, their office hours, and other useful information that will enable people to make a more informed choice of physician.
'The physician may furnish this information through the accepted local media of advertising or communication, which are open to all physicians on like conditions. Office signs, professional cards, dignified announcements, telephone directory listings, and reputable directories are examples of acceptable media for making information available to the public.
'A physician may give biographical and other relevant data for listing in a reputable directory. . . . If the physician, at his option, chooses to supply fee information, the published data may include his charge for a standard office visit or his fee or range of fees for specific types of services, provided disclosure is made of the variable and other pertinent factors affecting the amount of the fee specified. The published data may include other relevant facts about the physician, but false, misleading, or deceptive statements or claims should be avoided.' 235 J.A.M.A. 2328 (1976).
21
See M. Freedman, Lawyers' Ethics in an Adversary System 115-116 (1975); Branca & Steinberg, Attorney Fee Schedules and Legal Advertising: The Implications of Goldfarb, 24 UCLA Rev. 475, 516-517 (1977).
22
The Report of the Special Committee on the Availability of Legal Services, adopted by the House of Delegates of the American Bar Association, and contained in the ABA's Revised Handbook on Prepaid Legal Services (1972), states, at 26: 'We are persuaded that the actual or feared price of such services coupled with a sense of unequal bargaining status is a significant barrier to wider utilization of legal services.' See also E. Koos, The Family and The Law 7 (1948) (survey in which 47.6% of working-class families cited cost as the reason for not using a lawyer); P. Murphy & S. Walkowski, Compilation of Reference Materials on Prepaid Legal Services 2-3 (1973) (summarizing study in which 514 of 1,040 respondents gave expected cost as reason for not using a lawyer's services despite a perceived need). There are indications that fear of cost is unrealistic. See Petition of the Board of Governors of the District of Columbia Bar for Amendments to Rule X of the Rules Governing the Bar of the District of Columbia (1976), reprinted in the App. to Brief for United States as Amicus Curiae 10a, 24a-25a (reporting study in which middleclass consumers overestimated lawyers' fees by 91% for the drawing of a simple will, 340% for reading and advising on a 2-page installment sales contract, and 123% for 30 minutes of consultation). See also F. Marks, R. Hallauer, & R. Clifton, The Shreveport Plan: An Experiment in the Delivery of Legal Services 50-52 (1974).
23
The preliminary release of some of the results of a survey conducted by the ABA Special Committee to Survey Legal Needs in collaboration with the American Bar Foundation reveals 48.7% strongly agreed and another 30.2% slightly agreed with the statement that people do not go to lawyers because they have no way of knowing which lawyers are competent to handle their particular problems. ABA, Legal Services and the Public, 3 Alternatives 15 (Jan. 1976). See B. Curran & F. Spalding, The Legal Needs of the Public 96 (Preliminary Report 1974) (an earlier report concerning the same survey). Although advertising by itself is not adequate to deal with this problem completely, it can provide some of the information that a consumer needs to make an intelligent selection.
24
The British view may be changing. An official British Commission recently presented reports to Parliament recommending that solicitors be permitted to advertise. Monopolies and Mergers Commission, Services of Solicitors in England and Wales: A Report on the Supply of Services of Solicitors in England and Wales in Relation to Restrictions on Advertising 39 41 (1976); Monopolies and Mergers Commission, Services of Solicitors in Scotland: A Report on the Supply of Services of Solicitors in Scotland in Relation to Restrictions on Advertising 31-34 (1976). A companion study concerning barristers recommended that no changes be made in the restrictions upon their advertising, chiefly because barristers are not hired directly by laymen. Monopolies and Mergers Commission, Barristers' Services: A Report on the Supply of Barristers' Services in Relation to Restrictions on Advertising 21-24 (1976).
25
See Morgan, The Evolving Concept of Professional Responsibility, 90 Harv.L.Rev. 702, 741 (1977); Note, Advertising, Solicitation and the Profession's Duty to Make Legal Counsel Available, 81 Yale L.J. 1181, 1203 (1972). Economic considerations suggest that advertising is a more significant force in the marketing of inexpensive and frequently used goods and services with mass markets than in the marketing of unique products or services.
26
Moreover, we see nothing that is misleading in the advertisement of the cost of an initial half-hour consultation. The American Bar Association's Code of Professional Responsibility DR 2-102(A)(6) (1976), permits the disclosure of such fee information in the classified section of a telephone directory. See n. 18, supra. If the information is not misleading when published in a telephone directory, it is difficult to see why it becomes misleading when published in a newspaper.
27
One commentator has observed: '(A) moment's reflection reveals that the same argument can be made for barbers; rarely are two haircuts identical, but that does not mean that barbers cannot quote a standard price. Lawyers perform countless relatively standardized services which vary somewhat in complexity but not so much as to make each job utterly unique.' Morgan, supra, n. 25, at 714.
28
THE CHIEF JUSTICE and Mr. Justice POWELL argue in dissent that advertising will be misleading because the exact services that are included in an advertised package may not be clearly specified or understood by the prospective client. Post, at 386-387, and 392-394. The bar, however, retains the power to define the services that must be included in an advertised package, such as an uncontested divorce, thereby standardizing the 'product.' We recognize that an occasional client might fail to appreciate the complexity of his legal problem and will visit an attorney in the mistaken belief that his difficulty can be handled at the advertised price. The misunderstanding, however, usually will be exposed at the initial consultation, and an ethical attorney would impose, at the most, a minimal consultation charge or no charge at all for the discussion. If the client decides to have work performed, a fee could be negotiated in the normal manner. The client is thus in largely the same position as he would be if there were no advertising. In light of the benefits of advertising to those whose problem can be resolved at the advertised price, suppression is not warranted on account of the occasional client who misperceives his legal difficulties.
29
The same argument could be made about the advertising of abortion services. Although the layman may not know all the details of the medical procedure and may not always be able accurately to diagnose pregnancy, such advertising has certain First Amendment protection. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).
30
It might be argued that advertising is undesirable because it allows the potential client to substitute advertising for reputational information in selecting an appropriate attorney. See, e. g., Note, Sherman Act Scrutiny of Bar Restraints on Advertising and Solicitation by Attorneys, 62 Va.L.Rev. 1135, 1152-1157 (1976). Since in a referral system relying on reputation an attorney's future business is partially dependent on current performance, such a system has the benefit both of providing a mechanism for disciplining misconduct and of creating an incentive for an attorney to do a better job for his present clients. Although the system may have worked when the typical lawyer practiced in a small, homogeneous community in which ascertaining reputational information was easy for a consumer, commentators have seriously questioned its current efficacy. See, e. g., B. Christensen, Lawyers for People of Moderate Means 128-135 (1970); Note, Bar Restrictions on Dissemination of Information about Legal Services, 22 UCLA Rev. 483, 500 (1974); Note, Sherman Act Scrutiny, supra, at 1156-1157. The trends of urbanization and specialization long since have moved the typical practice of law from its small-town setting. See R. Pound, The Lawyer from Antiquity to Modern Times 242 (1953). Information as to the qualifications of lawyers is not available to many. See n. 23, supra. And, if available, it may be inaccurate or biased. See Note, Sherman Act Scrutiny, supra, at 1157.
31
It is argued that advertising also will encourage fraudulent claims. We do not believe, however, that there is an inevitable relationship between advertising and dishonesty. See Monopolies and Mergers Commission, Services of Solicitors in England and Wales, supra, n. 24, at 32-33 ('The temptation to depart from the high standards required of the profession no doubt exists, but we do not believe that solicitors would be likely to succumb to it more easily or more frequently merely by reason of the supposed contamination of advertising; the traditions of the profession and the sense of responsibility of its members are in our view too strong for this to happen'). Unethical lawyears and dishonest laymen are likely to meet even though restrictions on advertising exist. The appropriate response to fraud is a sanction addressed to that problem alone, not a sanction that unduly burdens a legitimate activity.
32
Decided cases reinforce this view. The Court often has recognized that collective activity undertaken to obtain meaningful access to the courts is protected under the First Amendment. See United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 585, 91 S.Ct. 1076, 1082, 28 L.Ed.2d 339 (1971); United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222-224, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); Brotherhood of Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 7, 84 S.Ct. 1113, 1117, 12 L.Ed.2d 89 (1964); NAACP v. Button, 371 U.S. 415, 438-440, 83 S.Ct. 328, 340-341, 9 L.Ed.2d 405 (1963). It would be difficult to understand these cases if a lawsuit were somehow viewed as an evil in itself. Underlying them was the Court's concern that the aggrieved receive information regarding their legal rights and the means of effectuating them. This concern applies with at least as much force to aggrieved individuals as it does to groups.
33
The ABA survey discussed in n. 23 indicates that 35.8% of the adult population has never visited an attorney and another 27.9% has visited an attorney only once. 3 Alternatives, supra, n. 23, at 12. See also P. Murphy & S. Walkowski, Compilation of Reference Materials on Prepaid Legal Services 1 (1973); Meserve, Our Forgotten Client: The Average American, 57 A.B.A.J. 1092 (1971). Appellee concedes the existence of the problem, but argues that advertising offers an unfortunate solution. Brief for Appellee 54-56.
34
See Benham, The Effect of Advertising on the Price of Eyeglasses, 15 J.Law & Econ. 337 (1972); J. Cady, Restricted Advertising and Competition: The Case of Retail Drugs (1976). See also Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 754, and n. 11, 96 S.Ct., at 1821 (noting variation in drug prices of up to 1200% in one city).
35
On the one hand, advertising does increase an attorney's overhead costs, and, in light of the underutilization of legal services by the public, see n. 33, supra, it may increase substantially the demand for services. Both these factors will tend to increase the price of legal services. On the other hand, the tendency of advertising to enhance competition might be expected to produce pressures on attorneys to reduce fees. The net effect of these competing influences is hard to estimate. We deem it significant, however, that consumer organizations have filed briefs as amici urging that the restriction on advertising be lifted. And we note as well that, despite the fact that advertising on occasion might increase the price the consumer must pay, competition through advertising is ordinarily the desired norm.
Even if advertising causes fees to drop, it is by no means clear that a loss of income to lawyers will result. The increased volume of business generated by advertising might more than compensate for the reduced profit per case. See Frierson, Legal Advertising, Barrister 6, 8 (Winter 1975); Wilson, Madison Avenue, Meet the Bar, 61 A.B.A.J. 586, 588 (1975).
36
The same appellant, however, stated: '(I)'s not my job to inform a prospective client that he needn't employ a lawyer to handle his work.' App. 112-113.
37
The determination whether an advertisement is misleading requires consideration of the legal sophistication of its audience. Cf. Feil v. FTC, 285 F.2d 879, 897 (CA9 1960). Thus, different degrees of regulation may be appropriate in different areas.
1
I express no view on Mr. Justice POWELL'S conclusion that the advertisement of an attorney's initial consultation fee or his hourly rate would not be inherently misleading and thus should be permitted since I cannot understand why an 'initial consultation' should have a different charge base from an hourly rate. Post, at 399-400. Careful study of the problems of attorney advertising and none has yet been made may well reveal that advertisements limited to such matters do not carry with them the potential for abuse that accompanies the advertisement of fees for particular services. However, even such limited advertisements should not be permitted without a disclaimer which informs the public that the fee charged in any particular case will depend on and vary according to the individual circumstances of that case. See ABA Code of Professional Responsibility DR 2-106(B) (1976).
2
The publication of such information by the organized bar would create no conflict with our holding in Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), so long as attorneys were under no obligation to charge within the range of fees described.
1
The disciplinary rule is reproduced ante, at 355, and n. 5.
2
The Chief Justice, concurring in Virginia Pharmacy, also emphasized the distinction between tangible products and professional services:
'The Court notes that roughly 95% of all prescriptions are filled with dosage units already prepared by the manufacturer and sold to the pharmacy in that form. . . . In dispensing these prepackaged items, the pharmacist performs largely a packaging rather than a compounding function of former times.' 425 U.S., at 773-774, 96 S.Ct., at 1831 (emphasis in original).
3
What legal services are 'routine' depends on the eye of the beholder. A particular service may be quite routine to a lawyer who has specialized in that area for many years. The marital trust provisions of a will, for example, are routine to the experienced tax and estate lawyer; they may be wholly alien to the negligence litigation lawyer. And what the unsophisticated client may think is routine simply cannot be predicted. Absent even a minimal common understanding as to the service, and given the unpredictability in advance of what actually may be required, the advertising lawyer and prospective client often will have no meeting of the minds. Although widely advertised tangible products customarily vary in many respects, at least in the vast majority of cases prospective purchasers know the product and can make a preliminary comparative judgment based on price. But not even the lawyer doing the advertising can know in advance the nature and extent of services required by the client who responds to the advertisement. Price comparisons of designated services, therefore, are more likely to mislead than to inform.
4
It may be argued that many of these problems are not applicable for couples of modest means. This is by no means invariably true, even with respect to alimony, support and maintenance, and property questions. And it certainly is not true with respect to the more sensitive problems of child custody and visitation rights.
5
A high percentage of couples seeking counsel as to divorce desire initially that it be uncontested. They often describe themselves as civilized people who have mutually agreed to separate; they want a quiet, out-of-court divorce without alimony. But experienced counsel knows that the initial spirit of amity often fades quickly when the collateral problems are carefully explored. Indeed, scrupulous counsel except in the rare case will insist that the paities have separate counsel to assure that the rights of each, and those of children, are protected adequately. In short, until the lawyer has performed his first duties of diagnosis and advice as to rights, it is usually impossible to know whether there can or will be an uncontested divorce. As President Mark Harrison of the State Bar of Arizona testified:
'I suppose you can get lucky and have three clients come in in response to (appellants' advertisement) who have no children; no real property; no real disagreement, and you can handle such an uncontested divorce, and do a proper job for a (pre)determined, . . . prestated price.
(T)he inherent vice (is) that you can't know in advance, what special problems the client who sees the advertisement will present, and if you are bound to a predetermined price . . . sooner or later you are going to have to inevitably sacrifice the quality of service you are able to render.' App. 378-380.
6
Similar complications surround the uncontested adoption and the simple bankruptcy.
7
Use of the term 'clinic' to describe a law firm of any size is unusual, and possibly ambiguous in view of its generally understood meaning in the medical profession. Appellants defend its use as justified by their plan to provide standardized legal services at low prices through the employment of automatic equipment and paralegals. But there is nothing novel or unusual about the use by law firms of automatic equipment, paralegals, and other modern techniques for serving clients at lower cost. Nor are appellants a public service law firm. They are in the private practice, and though their advertising is directed primarily to clients with family incomes of less than $25,000, appellants do not limit their practice to this income level. Id., at 82.
8
For example, the American Bar Association's Code of Professional Responsibility specifies the '(f)actors to be considered as guides in determining the reasonableness of a fee . . ..' DR 2-106(B)(1976). These include:
'(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
'(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
'(3) The fee customarily charged in the locality for similar legal services.
'(4) The amount involved and the results obtained.
'(5) The time limitations imposed by the client or by the circumstances.
'(6) The nature and length of the professional relationship with the client.
'(7) The experience, reputation, and ability of the lawyer or lawyers performing the service.
'(8) Whether the fee is fixed or contingent.'
9
A major step forward was taken in 1965 with the initiation of the legal services program of the Office of Economic Opportunity, a program fully supported by the American Bar Association. The legal services program is now administered by the Federal Legal Services Corporation, created by Congress in 1976. Efforts by the profession to broaden the availability of legal services to persons of low- and middle-income levels also gained momentum in 1965.
10
Although Semler v. Oregon State Board of Dental Examiners involved a due process issue rather than a First Amendment challenge, the distinction drawn in that case between the advertisement of professional services and commodities is highly relevant. Mr. Chief Justice Hughes, writing for the Court, stated:
'We do not doubt the authority of the State to estimate the baleful effects of such methods and to put a stop to them. The legislature was not dealing with traders in commodities, but with the vital interest of public health, and with a profession treating bodily ills and demanding different standards of conduct from those which are traditional in the competition of the market place. The community is concerned with the maintenance of professional standards which will insure not only competency in individual practitioners, but protection against those who would prey upon a public peculiarly susceptible to imposition through alluring promises of physical relief. And the community is concerned in providing safeguards not only against deception, but against practices which would tend to demoralize the profession of forcing its members into an unseemly rivalry which would enlarge the opportunities of the least scrupulous. What is generally called the 'ethics' of the profession is but the consensus of expert opinion as to the necessity of such standards.' 294 U.S., at 612, 55 S.Ct., at 572. This distinction, addressed specifically to advertising, has never been questioned by this Court until today. Indeed, Semler was recently cited with approval in Goldfarb v. Virginia State Bar, 421 U.S. 773, 792-793 95 S.Ct. 2004, 2015-2016, 44 L.Ed. 572 (1975).
11
The Court's opinion is not without an undertone of criticism of lawyers and the legal profession for their opposition to price advertising: e. g., (i) the reference to the profession 'condoning the actions of the attorney who structures his social or civic associations so as to provide contacts with potential clients,' ante, at 371; and (ii) the implication that opposition to advertising derives from the view that lawyers 'belittle the person who earns his living by the strength of his arm' and 'somehow [are] 'above' trade,' ante, at 371-372. The indiscriminate criticism is unjustified. Lawyers are not hermits and society would suffer if they were. Members of the legal profession customarily are leaders in the civic, charitable, cultural, and political life of most communities. Indeed, the professional responsibility of lawyers is thought to include the duty of civic and public participation. As a profession, lawyers do differ from other callings. 'This is not a fancied conceit, but a cherished tradition, the preservation of which is essential to the lawyer's reverence for his calling.' H. Drinker, Legal Ethics 211 (1963) (footnote omitted). There certainly can be pride in one's profession without belittling those who perform other tasks essential to an ongoing society.
12
The Court speaks specifically only of newspaper advertising, but it is clear that today's decision cannot be confined on a principled basis to price advertisements in newspapers. No distinction can be drawn between newspapers and a rather broad spectrum of other means—for example, magazines, signs in buses and subways, posters, handbills, and mail circulations. But questions remain open as to time, place, and manner restrictions affecting other media, such as radio and television.
13
It has been suggested that price advertising will benefit younger lawyers and smaller firms, as well as the public, by enabling them to compete more favorably with the larger, established firms. The overtones of this suggestion are antitrust rather than First Amendment in principle. But whatever the origin, there is reason seriously to doubt the validity of the premise. With the increasing complexity of legal practice, perhaps the strongest trend in the profession today is toward specialization. Many small firms will limit their practice to intensely specialized areas; the larger, institutionalized firms are likely to have a variety of departments, each devoted to a special area of the law. The established specialist and the large law firm have advantages that are not inconsiderable if price competition becomes commonplace. They can advertise truthfully the areas in which they practice; they enjoy economies of scale that may justify lower prices; and they often possess the economic power to disadvantage the weaker or more inexperienced firms in any advertising competition. Whether the potential for increased concentration of law practice in a smaller number of larger firms would be detrimental to the public is not addressed by the Court.
| 56
|
433 U.S. 267
97 S.Ct. 2749
53 L.Ed.2d 745
William G. MILLIKEN, Governor of the State of Michigan, et al., Petitioners,v.Ronald BRADLEY et al.
No. 76-447.
Argued March 22, 1977.
Decided June 27, 1977.
Syllabus
After this Court in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (Milliken I), determined that an interdistrict remedy for de jure segregation in the Detroit school system exceeded the constitutional violation, and remanded the case for formulation of a decree, the District Court promptly ordered submission of desegregation plans limited to the Detroit school system. After extensive hearings the court, in addition to a plan for student assignment, included in its decree educational components, proposed by the Detroit School Board, in the areas of reading, inservice teacher training, testing, and counseling. The court determined that these components were necessary to carry out desegregation, and directed that the costs were to be borne by the Detroit School Board and the State. The Court of Appeals affirmed the District Court's order concerning the implementation of and cost sharing for the four educational components. Held:
1. As part of a desegregation decree a district court can, if the record warrants, order compensatory or remedial educational programs for schoolchildren who have been subjected to past acts of de jure segregation. Here the District Court, acting on substantial evidence in the record, did not abuse its discretion in approving a remedial plan going beyond pupil assignments and adopting specific programs that had been proposed by local school authorities. Pp. 279-288.
(a) 'In fashioning and effectuating (desegregation) decrees, the courts will be guided by equitable principles,' Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083, and in applying such principles, federal courts are to focus on the nature and scope of the violation, the fact that the decree must be remedial, and the interests of state and local authorities in managing their own affairs. Pp. 280-281.
(b) Where, as here, a constitutional violation has been found, the remedy does not 'exceed' the violation if the remedy is tailored to cure the 'condition that offends the Constitution,' Milliken I, supra, 418 U.S., at 738, 94 S.Ct., at 3124, i. e., Detroit's de jure segregated school system. Matters other than pupil assignment must on occasion be addressed by federal courts to eliminate the effects of prior segregation, United States v. Montgomery County Board of Education, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263, and federal courts have, over the years, required inclusion of remedial programs in desegregation plans, when the record warrants, to remedy the direct consequences of dual school systems. Pp. 281-288.
2. The requirement that the state defendants pay one-half the additional costs attributable to the four educational components does not violate the Eleventh Amendment, since the District Court was authorized to provide prospective equitable relief, even though such relief requires the expenditure of money by the State. Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662. Pp. 288-290.
3. The Tenth Amendment's reservation of nondelegated powers to the States is not implicated by a federal court's judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment, nor are principles of federalism abrogated by the decree. P. 291.
540 F.2d 229, affirmed.
Frank J. Kelley, Atty. Gen., Lansing, Mich., for petitioners.
George T. Roumell, Jr., Detroit, Mich., for respondent Detroit Board of Education.
Nathaniel R. Jones, New York City, for respondent Bradley.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case to consider two questions concerning the remedial powers of federal district courts in school desegregation cases, namely, whether a District Court can, as part of a desegregation decree, order compensatory or remedial educational programs for schoolchildren who have been subjected to past acts of de jure segregation, and whether, consistent with the Eleventh Amendment, a federal court can require state officials found responsible for constitutional violations to bear part of the costs of those programs.
2
* This case is before the Court for the second time, following our remand, Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I); it marks the culmination of seven years of litigation over de jure school segregation in the Detroit public school system. For almost six years, the litigation has focused exclusively on the appropriate remedy to correct official acts of racial discrimination committed by both the Detroit School Board and the State of Michigan. No challenge is now made by the State or the local School Board to the prior findings of de jure segregation.1
3
* In the first stage of the remedy, proceedings which we reviewed in Milliken I, supra, the District Court, after reviewing several 'Detroit-only' desegregation plans, concluded that an interdistrict plan was required to "achieve the greatest degree of actual desegregation . . . (so that) no school, grade or classroom (would be) substantially disproportionate to the overall pupil racial composition." 345 F.Supp. 914, 918 (E.D.Mich.1972), quoted in Milliken I, supra, 418 U.S., at 734, 94 S.Ct., at 3122. On those premises, the District Court ordered the parties to submit plans for 'metropolitan desegregation' and appointed a nine-member panel to formulate a desegregation plan, which would encompass a 'desegregation area' consisting of 54 school districts.
4
In June 1973, a divided Court of Appeals, sitting en banc, upheld, 484 F.2d 215 (CA 6), the District Court's determination that a metropolitan-wide plan was essential to bring about what the District Court had described as 'the greatest degree of actual desegregation . . ..' 345 F.Supp., at 918. We reversed, holding that the order exceeded appropriate limits of federal equitable authority as defined in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 24, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971), by concluding that 'as a matter of substantive constitutional right, (a) particular degree of racial balance' is required, and by subjecting other school districts, uninvolved with and unaffected by any constitutional violations, to the court's remedial powers. Milliken I, supra. Proceeding from the Swann standard 'that the scope of the remedy is determined by the nature and extent of the constitutional violation,' we held that, on the record before us, there was no interdistrict violation calling for an interdistrict remedy. Because the District Court's 'metropolitan remedy' went beyond the constitutional violation, we remanded the case for further proceedings 'leading to prompt formulation of a decree directed to eliminating the segregation found to exist in the Detroit city schools, a remedy which has been delayed since 1970.' 418 U.S., at 753, 94 S.Ct., at 3131.2
B
5
Due to the intervening death of Judge Stephen J. Roth, who had presided over the litigation from the outset, the case on remand was reassigned to Judge Robert E. DeMascio. Judge DeMascio promptly ordered respondent Bradley and the Detroit Board to submit desegregation plans limited to the Detroit school system. On April 1, 1975, both parties submitted their proposed plans. Respondent Bradley's plan was limited solely to pupil reassignment; the proposal called for extensive transportation of students to achieve the plan's ultimate goal of assuring that every school within the district reflected, within 15 percentage points, the racial ratio of the school district as a whole.3 In contrast to respondent Bradley' s proposal, the Detroit Board's plan provided for sufficient pupil reassignment to eliminate 'racially identifiable white elementary schools,' while ensuring that 'every child will spend at least a portion of his education in either a neighborhood elementary school or a neighborhood junior and senior high school.' 402 F.Supp. 1096, 1116 (1975). By eschewing racial ratios for each school, the Board's plan contemplated transportation of fewer students for shorter distances than respondent Bradley's proposal.4
6
In addition to student reassignments, the Board's plan called for implementation of 13 remedial or compensatory programs, referred to in the record as 'educational components.' These compensatory programs, which were proposed in addition to the plan's provisions for magnet schools and vocational high schools, included three of the four components at issue in this case in-service training for teachers and administrators, guidance and counseling programs, and revised testing procedures.5 Pursuant to the District Court's direction, the State Board of Education6 on April 21, 1975, submitted a critique of the Detroit Board's desegregation plan; in its report, the State Board opined that, although '(i)t is possible that none of the thirteen 'quality education' components is essential . . . to correct the constitutional violation . . .,' 8 of the 13 proposed programs nonetheless deserved special consideration in the desegregation setting. Of particular relevance here, the State Board said:
7
'Within the context of effectuating a pupil desegregation plan, the in-service training (and) guidance and counseling . . . components appear to deserve special emphasis.' 4 Record, Doc. 591, pp. at 38-39.7
8
After receiving the State Board's critique,8 the District Court conducted extensive hearings on the two plans over a two-month period. Substantial testimony was adduced with respect to the proposed educational components, including testimony by petitioners' expert witnesses.9 Based on this evidence and on reports of court-appointed experts, the District Court on August 11, 1975, approved, in principle, the Detroit Board's inclusion of remedial and compensatory educational components in the desegregation plan.10
9
'We find that the majority of the educational components included in the Detroit Board plan are essential for a school district undergoing desegregation. While it is true that the delivery of quality desegregated educational services is the obligation of the school board, nevertheless this court deems it essential to mandate educational components where they are needed to remedy effects of past segregation, to assure a successful desegregative effort and to minimize the possibility of resegregation.' 402 F.Supp., at 1118.
10
The District Court expressly found that the two components of testing and counseling, as then administered in Detroit's schools, were infected with the discriminatory bias of a segregated school system:
11
'In a segregated setting many techniques deny equal protection to black students, such as discriminatory testing (and) discriminatory counseling . . ..' Ibid.
12
The District Court also found that, to make desegregation work, it was necessary to include remedial reading programs and in-service training for teachers and administrators:
13
'In a system undergoing desegregation, teachers will require orientation and training for desegregation. . . . Additionally, we find that . . . comprehensive reading programs are essential . . . to a successful desegregative effort.' Ibid.
14
Having established these general principles, the District Court formulated several 'remedial guidelines' to govern the Detroit Board's development of a final plan. Declining 'to substitute its authority for the authority of elected state and local officials to decide which educational components are beneficial to the school community,' id., at 1145, the District Judge laid down the following guidelines with respect to each of the four educational components at issue here:
15
(a) Reading. Concluding that '(t)here is no educational component more directly associated with the process of desegregation than reading,' id., at 1138, the District Court directed the General Superintendent of Detroit's schools to institute a remedial reading and communications skills program '(t)o eradicate the effects of past discrimination . . ..' Ibid. The content of the required program was not prescribed by the court; rather, formulation and implementation of the program was left to the Superintendent and to a committee to be selected by him.
16
(b) In-Service Training. The court also directed the Detroit Board to formulate a comprehensive in-service teacher training program, an element 'essential to a system undergoing desegregation.' Id., at 1139. In the District Court's view, an in-service training program for teachers and administrators, to train professional and instructional personnel to cope with the desegregation process in Detroit, would tend to ensure that all students in a desegregated system would be treated equally by teachers and administrators able, by virtue of special training, to cope with special problems presented by desegregation, and thereby facilitate Detroit's conversion to a unitary system.
17
(c) Testing. Because it found, based on record evidence, that Negro children 'are especially affected by biased testing procedures,' the District Court determined that, frequently, minority students in Detroit were adversely affected by discriminatory testing procedures. Unless the school system's tests were administered in a way 'free from racial, ethnic and cultural bias,' the District Court concluded that Negro children in Detroit might thereafter be impeded in their educational growth. Id., at 1142. Accordingly, the court directed the Detroit Board and the State Department of Education to institute a testing program along the lines proposed by the local school board in its original desegregation plan. Ibid.
18
(d) Counseling and Career Guidance. Finally, the District Court addressed what expert witnesses had described as psychological pressures on Detroit's students in a system undergoing desegregation. Counselors were required, the court concluded, both to deal with the numerous problems and tensions arising in the change from Detroit's dual system, and, more concretely, to counsel students concerning the new vocational and technical school programs available under the plan through the cooperation of state and local officials.11
19
Nine months later, on May 11, 1976, the District Court entered its final order. Emphasizing that it had 'been careful to order only what is essential for a school district undergoing desegregation,' App. to Pet. for Cert. 117a, the court ordered the Detroit Board and the state defendants to institute comprehensive programs as to the four educational components by the start of the September 1976 school term. The cost of these four programs, the court concluded, was to be equally borne by the Detroit School Board and the State. To carry out this cost sharing, the court directed the local board to calculate its highest budget allocation in any prior year for the several educational programs and, from that base, any excess cost attributable to the desegregation plan was to be paid equally by the two groups of defendants responsible for prior constitutional violations, i. e., the Detroit Board and the state defendants.
C
20
On appeal, the Court of Appeals for the Sixth Circuit affirmed the District Court's order concerning the implementation of and cost sharing for the four educational components.12 540 F.2d 229 (1976). The Court of Appeals expressly approved the District Court's findings as to the necessity for these compensatory programs:
21
'This finding . . . is not clearly erroneous, but to the contrary is supported by ample evidence.
22
'The need for in-service training of the educational staff and development of nondiscriminatory testing is obvious. The former is needed to insure that the teachers and administrators will be able to work effectively in a desegregated environment. The latter is needed to insure that students are not evaluated unequally because of built-in bias in the tests administered in formerly segregated schools.
23
'We agree with the District Court that the reading and counseling programs are essential to the effort to combat the effects of segregation.
24
'Without the reading and counseling components, black students might be deprived of the motivation and achievement levels which the desegregation remedy is designed to accomplish.' Id., at 241.
25
After reviewing the record, the Court of Appeals confirmed that the District Court relied largely on the Detroit School Board in formulating the decree:
26
'This is not a situation where the District Court 'appears to have acted solely according to its own notions of good educational policy unrelated to the demands of the Constitution." Id., at 241-242, quoting Keyes v. School Dist. No. 1, Denver, Colo., 521 F.2d 465, 483 (C.A.10 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1976).
27
After upholding the remedial-components portion of the plan, the Court of Appeals went on to affirm the District Court's allocation of costs between the state and local officials. Analyzing this Court's decision in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), which reaffirmed the rule that the Eleventh Amendment bars an ordinary suit for money damages against the State without its consent, the Court of Appeals held:
28
'(The District Court's order) imposes no money judgment on the State of Michigan for past de jure segregation practices. Rather, the order is directed toward the State defendants as a part of a prospective plan to comply with a constitutional requirement to eradicate all vestiges of de jure segregation.' 540 F.2d, at 245. (Emphasis supplied.)
29
The Court of Appeals remanded the case for further consideration of the three central city regions untouched by the District Court's pupil reassignment plan. See n. 12, supra.
30
The state defendants then sought review in this Court, challenging only those portions of the District Court's comprehensive remedial order dealing with the four educational components and with the State's obligation to defray the costs of those programs. We granted certiorari, 429 U.S. 958, 97 S.Ct. 380, 50 L.Ed.2d 325 (1976), and we affirm.
II
31
This Court has not previously addressed directly the question whether federal courts can order remedial education programs as part of a school desegregation decree.13 However, the general principles governing our resolution of this issue are well settled by the prior decisions of this Court. In the first case concerning federal courts' remedial powers in eliminating de jure school segregation, the Court laid down the basic rule which governs to this day: 'In fashioning and effectuating the (desegregation) decrees, the courts will be guided by equitable principles.' Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II).
32
Application of those 'equitable principles,' we have held, requires federal courts to focus upon three factors. In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S., at 16, 91 S.Ct., at 1276. The remedy must therefore be related to 'the condition alleged to offend the Constitution . . ..' Milliken I, 418 U.S., at 738, 94 S.Ct., at 3124.14 Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible 'to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.' Id., at 746, 94 S.Ct., at 3128.15 Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution. In Brown II the Court squarely held that '(s)chool authorities have the primary responsibility for elucidating, assessing, and solving these problems . . ..' 349 U.S., at 299, 75 S.Ct., at 756. (Emphasis supplied.) If, however, 'school authorities fail in their affirmative obligations . . . judicial authority may be invoked.' Swann, supra, 402 U.S., at 15, 91 S.Ct., at 1276. Once invoked, 'the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.' Ibid.
B
33
In challenging the order before us, petitioners do not specifically question that the District Court's mandated programs are designed, as nearly as practicable, to restore the schoolchildren of Detroit to a position they would have enjoyed absent constitutional violations by state and local officials. And, petitioners do not contend, nor could they, that the prerogatives of the Detroit School Board have been abrogated by the decree, since of course the Detroit School Board itself proposed incorporation of these programs in the first place. Petitioners' sole contention is that, under Swann, the District Court's order exceeds the scope of the constitutional violation. Invoking our holding in Milliken I, petitioners claim that, since the constitutional violation found by the District Court was the unlawful segregation of students on the basis of race, the court's decree must be limited to remedying unlawful pupil assignments. This contention misconceives the principle petitioners seek to invoke, and we reject their argument.
34
The well-settled principle that the nature and scope of the remedy are to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation, see Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation, as in Milliken I, supra. Hills v. Gautreaux, 425 U.S. 284, 292-296, 96 S.Ct. 1538, 1543-1545, 47 L.Ed.2d 792 (1976). But where, as here, a constitutional violation has been found, the remedy does not 'exceed' the violation if the remedy is tailored to cure the "condition that offends the Constitution." Milliken I, supra, 418 U.S., at 738, 94 S.Ct., at 3124. (Emphasis supplied.)
35
The 'condition' offending the Constitution is Detroit's de jure segregated school system, which was so pervasively and persistently segregated that the District Court found that the need for the educational components flowed directly from constitutional violations by both state and local officials. These specific educational remedies, although normally left to the discretion of the elected school board and professional educators, were deemed necessary to restore the victims of discriminatory conduct to the position they would have enjoyed in terms of education had these four components been provided in a nondiscriminatory manner in a school system free from pervasive de jure racial segregation.
36
In the first case invalidating a de jure system, a unanimous Court, speaking through Mr. Chief Justice Warren, held in Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954) (Brown I): 'Separate educational facilities are inherently unequal.' Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954). And in United States v. Montgomery County Board of Education, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969), the Court concerned itself not with pupil assignment, but with the desegregation of faculty and staff as part of the process of dismantling a dual system. In doing so, the Court, there speaking through Mr. Justice Black, focused on the reason for judicial concerns going beyond pupil assignment: 'The dispute . . . deals with faculty and staff desegregation, a goal that we have recognized to be an important aspect of the basic task of achieving a public school system wholly free from racial discrimination.' Id., at 231-232, 89 S.Ct., at 1674. (Emphasis supplied.)
37
Montgomery County therefore stands firmly for the proposition that matters other than pupil assignment must on occasion be addressed by federal courts to eliminate the effects of prior segregation. Similarly, in Swann we reaffirmed the principle laid down in Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), that 'existing policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities were among the most important indicia of a segregated system.' 402 U.S., at 18, 91 S.Ct., at 1277. In a word, discriminatory student assignment policies can themselves manifest and breed other inequalities built into a dual system founded on racial discrimination. Federal courts need not, and cannot, close their eyes to inequalities, shown by the record, which flow from a longstanding segregated system.
C
38
In light of the mandate of Brown I and Brown II, federal courts have, over the years, often required the inclusion of remedial programs in desegregation plans to overcome the inequalities inherent in dual school systems. In 1966, for example, the District Court for the District of South Carolina directed the inclusion of remedial courses to overcome the effects of a segregated system:
39
'Because the weaknesses of a dual school system may have already affected many children, the court would be remiss in its duty if any desegregation plan were approved which did not provide for remedial education courses. They shall be included in the plan.' Miller v. School District 2, Clarendon County, S. C.N, 256 F.Supp. 370, 377 (1966).
40
In 1967, the Court of Appeals for the Fifth Circuit, then engaged in overseeing the desegregation of numerous school districts in the South, laid down the following requirement in an en banc decision:
41
'The defendants shall provide remedial education programs which permit students attending or who have previously attended segregated schools to overcome past inadequacies in their education.' United States v. Jefferson County Board of Education, 380 F.2d 385, 394, cert. denied, 389 U.S. 840, 88 S.Ct. 77, 19 L.Ed.2d 104 (1967). (Emphasis supplied.)
42
See also Stell v. Board of Public Education for City of Savannah, 387 F.2d 486, 492, 496-497 (C.A.5 1967); Hill v. Lafourche Parish School Board, 291 F.Supp. 819, 823 (E.D.La.1967); Redman v. Terrebonne Parish School Board, 293 F.Supp. 376, 379 (E.D.La.1967); Lee v. Macon County Board of Education, 267 F.Supp. 458, 489 (M.D.Ala.1967); Graves v. Walton County Board of Education, 300 F.Supp. 188, 200 (M.D.Ga.1968), aff'd, 410 F.2d 1153 (C.A.5 1969). Two years later, the Fifth Circuit again adhered to the rule that district courts could properly seek to overcome the built-in inadequacies of a segregated educational system:
43
'The trial court concluded that the school board must establish remedial programs to assist students who previously attended all-Negro schools when those students transfer to formerly all-white schools . . .. The remedial programs . . . are an integral part of a program for compensatory education to be provided Negro students who have long been disadvantaged by the inequities and discrimination inherent in the dual school system. The requirement that the School Board institute remedial programs so far as they are feasible is a proper exercise of the court's discretion.' Plaquemines Parish School Bd. v.
44
United States, 415 F.2d 817, 831 (1969). (Emphasis supplied.)
45
In the same year the United States District Court for the Eastern District of Louisiana required school authorities to come forward with a remedial educational program as part of a desegregation plan. "The defendants shall provide remedial education programs which permit students . . . who have previously attended all-Negro schools to overcome past inadequacies in their education." Smith v. St. Tammany Parish School Board, 302 F.Supp. 106, 110 (1969), aff'd, 448 F.2d 414 (C.A.5 1971). See also Moore v. Tangipahoa Parish School Board, 304 F.Supp. 244, 253 (E.D.La.1969); Moses v. Washington Parish School Board, 302 F.Supp. 362, 367 (E.D.La.1969).
46
In the 1970's the pattern has been essentially the same. The Fifth Circuit has, when the fact situation warranted, continued to call for remedial education programs in desegregation plans. E. g., United States v. State of Texas, 447 F.2d 441, 448 (1971), stay denied sub nom. Edgar v. United States, 404 U.S. 1206, 92 S.Ct. 8, 30 L.Ed.2d 10 (1971) (Black, J., in chambers). To that end, the approved plan in United States v. Texas required:
47
'(C)urriculum offerings and programs shall include specific educational programs designed to compensate minority group children for unequal educational opportunities resulting from past or present racial and ethnic isolation . . .' 447 F.2d, at 448.16
48
See also George v. O'Kelly, 448 F.2d 148, 150 (C.A.5 1971). And, as school desegregation litigation emerged in other regions of the country, federal courts have likewise looked in part to remedial programs, when the record supported an order to that effect. See, e. g., Morgan v. Kerrigan, 401 F.Supp. 216, 235 (Mass.1975), aff'd, 530 F.2d 401 (C.A.1), cert. denied sub nom. White v. Morgan, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976); Hart v. Community School Board of Brooklyn, 383 F.Supp. 699, 757 (E.D.N.Y.1974), aff'd, 512 F.2d 37 (C.A.2d 1975); cf. Booker v. Special School Dist. 1, Minneapolis, Minn., 351 F.Supp. 799 (Minn.1972).17
49
Finally, in addition to other remedial programs, which could, if circumstances warranted, include programs to remedy deficiencies, particularly in reading and communications skills, federal courts have expressly ordered special in-service training for teachers, see, e. g., United States v. State of Missouri, 523 F.2d 885, 887 (C.A.8 1975); Smith v. St. Tammany Parish School Board, supra, at 110; Moore v. Tanigpahoa Parish School Board, supra, at 253, and have altered or even suspended testing programs employed by school systems undergoing desegregation. See, e. g., Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211, 1219 (C.A.5 1969), cert. denied, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 530 (1970); Lemon v. Bossier Parish School Board, 444 F.2d 1400, 1401 (C.A.5 1971); Arvizu v. Waco Independent School Dist., 373 F.Supp. 1264 (W.D.Tex.1973), rev'd in part on other issues, 495 F.2d 499 (C.A.5 1974).
50
Our reference to these cases is not to be taken as necessarily approving holdings not reviewed by this Court. However, they demonstrate that the District Court in the case now before us did not break new ground in approving the School Board's proposed plan. Quite the contrary, acting on abundant evidence in this record, the District Court approved a remedial plan going beyond mere pupil assignments, as expressly approved by Swann and Montgomery County. In so doing, the District Court was adopting specific programs proposed by local school authorities, who must be presumed to be familiar with the problems and the needs of a system undergoing desegregation.18
51
We do not, of course, imply that the order here is a blueprint for other cases. That cannot be; in school desegregation cases, '(t)here is no universal answer to complex problems . . .; there is obviously no one plan that will do the job in every case.' Green, 391 U.S., at 439, 88 S.Ct., at 1695. On this record, however, we are bound to conclude that the decree before us was aptly tailored to remedy the consequences of the constitutional violation. Children who have been thus educationally and culturally set apart from the larger community will inevitably acquire habits of speech, conduct, and attitudes reflecting their cultural isolation. They are likely to acquire speech habits, for example, which vary from the environment in which they must ultimately function and compete, if they are to enter and be a part of that community. This is not peculiar to race; in this setting, it can affect any children who, as a group, are isolated by force of law from the mainstream. Cf. Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974).
52
Pupil assignment alone does not automatically remedy the impact of previous, unlawful educational isolation; the consequences linger and can be dealt with only by independent measures. In short, speech habits acquired in a segregated system do not vanish simply by moving the child to a desegregated school. The root condition shown by this record must be treated directly by special training at the hands of teachers prepared for that task. This is what the District Judge in the case drew from the record before him as to the consequences of Detroit's de jure system, and we cannot conclude that the remedies decreed exceeded the scope of the violations found.
53
Nor do we find any other reason to believe that the broad and flexible equity powers of the court were abused in this case. The established role of local school authorities was maintained inviolate, and the remedy is indeed remedial. The order does not punish anyone, nor does it impair or jeopardize the educational system in Detroit.19 The District Court, in short, was true to the principle laid down in Brown II:
54
'In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power.' 349 U.S., at 300, 75 S.Ct., at 756 (footnotes omitted).
III
55
Petitioners also contend that the District Court's order, even if otherwise proper, violates the Eleventh Amendment. In their view, the requirement that the state defendants pay one-half the additional costs attributable to the four educational components is, 'in practical effect, indistinguishable from an award of money damages against the state based upon the asserted prior misconduct of state officials.' Brief for Petitioners 34. Arguing from this premise, petitioners conclude that the 'award' in this case is barred under this Court's holding in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
56
Edelman involved a suit for money damages against the State, as well as for prospective injunctive relief.20 The suit was brought by an individual who claimed that Illinois officials had improperly withheld disability benefit payments from him and from the members of his class. Applying traditional Eleventh Amendment principles, we held that the suit was barred to the extent the suit sought 'the award of an accrued monetary liability . . .' which represented 'retroactive payments.' Id., at 663-664, 94 S.Ct., at 1356. (Emphasis supplied.) Conversely, the Court held that the suit was proper to the extent it sought 'payment of state funds . . . as a necessary consequence of compliance in the future with a substantive federal-question determination . . ..' Id., at 668, 94 S.Ct., at 1358. (Emphasis supplied.)
57
The decree to share the future costs of educational components in this case fits squarely within the prospective-compliance exception reaffirmed by Edelman. That exception, which had its genesis in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), permits federal courts to enjoin state officials to conform their conduct to requirements of federal law, notwithstanding a direct and substantial impact on the state treasury. 415 U.S., at 667, 94 S.Ct., at 1357. The order challenged here does no more than that. The decree requires state officials, held responsible for unconstitutional conduct, in findings which are not challenged, to eliminate a de jure segregated school system. More precisely, the burden of state officials is that set forth in Swann to take the necessary steps 'to eliminate from the public schools all vestiges of state-imposed segregation.' 402 U.S., at 15, 91 S.Ct., at 1275. The educational components, which the District Court ordered into effect prospectively, are plainly designed to wipe out continuing conditions of inequality produced by the inherently unequal dual school system long maintained by Detroit.21
58
These programs were not, and as a practical matter could not be, intended to wipe the slate clean by one bold stroke, as could a retroactive award of money in Edelman.22 Rather, by the nature of the antecedent violation, which on this record caused significant deficiencies in communications skills reading and speaking the victims of Detroit's de jure segregated system will continue to experience the effects of segregation until such future time as the remedial programs can help dissipate the continuing effects of past misconduct. Reading and speech deficiencies cannot be eliminated by judicial fiat; they will require time, patience, and the skills of specially trained teachers. That the programs are also 'compensatory' in nature does not change the fact that they are part of a plan that operates prospectively to bring about the delayed benefits of a unitary school system. We therefore hold that such prospective relief is not barred by the Eleventh Amendment.23
59
Finally, there is no merit to petitioners' claims that the relief ordered here violates the Tenth Amendment and general principles of federalism. The Tenth Amendment's reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment. Cf. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Nor are principles of federalism abrogated by the decree. The District Court has neither attempted to restructure local governmental entities nor to mandate a particular method or structure of state of local financing. Cf. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). The District Court has, rather, properly enforced the guarantees of the Fourteenth Amendment consistent with our prior holdings, and in a manner that does not jeopardize the integrity of the structure or functions of state and local government.
60
The judgment of the Court of Appeals is therefore
61
Affirmed.
62
Mr. Justice MARSHALL, concurring.
63
I wholeheartedly join THE CHIEF JUSTICE's opinion for the Court. My Brother comments.
64
What is, to me, most tragic about this case is that in all relevant respects it is in no way unique. That a northern school board has been found guilty of intentionally discriminator acts is, unfortunately, not unusual. That the academic development of black children has been impaired by this wrongdoing is to be expected. And, therefore, that a program of remediation is necessary to supplement the primary remedy of pupil reassignment is inevitable.
65
It is of course true, as Mr. Justice POWELL notes, that the Detroit School Board has belatedly recognized its responsibility for the injuries that Negroes have suffered, and has joined in the effort to remedy them. He may be right although I hope not that this makes the case 'wholly different from any prior case,' post, this page. But I think it worth noting that the legal issues would be no different if the Detroit School Board came to this Court on the other side. The question before us still would be the one posed by the State: Is the remedy tailored to fit the scope of the violation? And, as THE CHIEF JUSTICE convincingly demonstrates, that question would have to be answered in the affirmative in light of the findings of the District Court, supported by abundant evidence. Cf. Dayton Board of Education v. Brinkman, 433 U.S. 406, 414, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977).
66
Mr. Justice POWELL, concurring in the judgment.
67
The Court's opinion addresses this case as if it were conventional desegregation litigation. The wide-ranging opinion reiterates the familiar general principles drawn from the line of precedents commencing with Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and including today's decision in Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851. One has to read the opinion closely to understand that the case, as it finally reaches us, is wholly different from any prior case. I write to emphasize its uniqueness, and the consequent limited precedential effect of much of the Court's opinion.
68
Normally, the plaintiffs in this type of litigation are students, parents, and supporting organizations that desire to desegregate a school system alleged to be the product, in whole or in part, of de jure segregative action by the public school authorities. The principal defendant is usually the local board of education or school board. Occasionally the state board of education and state officials are joined as defendants. This protracted litigation commenced in 1970 in this conventional mold. In the intervening years, however, the posture of the litigation has changed so drastically as to leave it largely a friendly suit between the plaintiffs (respondents Bradley et al.) and the original principal defendant, the Detroit School Board. These parties, antagonistic for years, have now joined forces apparently for the purpose of extracting funds from the state treasury. As between the original principal parties the plaintiffs and the Detroit School Board no case or controversy remains on the issues now before us. The Board enthusiastically supports the entire desegregation decree even though the decree intrudes deeply on the Board's own decisionmaking powers. Indeed, the present School Board proposed most of the educational components included in the District Court's decree. The plaintiffs originally favored a desegregation plan that would have required more extensive transportation of pupils, and they did not initially propose or endorse the educational components. In this Court, however, the plaintiffs also support the decree of the District Court as affirmed by the Court of Appeals.1
69
Thus the only complaining party is the State of Michigan (acting through state officials), and its basic complaint concerns money, not desegregation. It has been ordered to pay about $5,800,000 to the Detroit School Board. This is one-half the estimated 'excess cost' of 4 of the 11 educational components included in the desegregation decree: remedial reading, in-service training of teachers, testing, and counseling.2 The State, understandably anxious to preserve the state budget from federal-court control or interference, now contests the decree on two grounds.
70
First, it is argued that the order to pay state funds violates the Eleventh Amendment and principles of federalism. Ordinarily a federal court's order that a State pay unappropriated funds to a locality would raise the gravest constitutional issues. See generally San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 40-42, 93 S.Ct. 1278, 1300-01, 36 L.Ed.2d 16 (1973); National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). But here, in a finding no longer subject to review, the State has been adjudged a participant in the constitutional violations, and the State therefore may be ordered to participate prospectively in a remedy otherwise appropriate.
71
The State's second argument is one that normally would be advanced vigorously by the school board. Relying on the established principle that the scope of the remedy in a desegregation case is determined and limited by the extent of the identified constitutional violations, Dayton Board of Education, supra, 433 U.S., at 419-420, 97 S.Ct., at 2775; Hills v. Gautreaux, 425 U.S. 284, 293-294, 96 S.Ct. 1538, 1544, 47 L.Ed.2d 792 (1976); Milliken v. Bradley, 418 U.S. 717, 744, 94 S.Ct. 3112, 3126, 41 L.Ed.2d 1069 (1974); Austin Independent School Dist. v. United States, 429 U.S. 990, 991, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976) (POWELL, J., concurring), the State argues that the District Court erred in ordering the systemwide expansion of the four educational components mentioned above. It contends that there has been no finding of a constitutional violation with respect to the past operation of any of these programs, and it insists that without more specifically focused findings of this sort, the decree exceeded the court's powers.
72
This argument is by no means a frivolous one. But the context in which it is presented is so unusual that it would be appropriate to dismiss the writ as improvidently granted. The argument is advanced by the State and not by the party primarily concerned. The educational programs at issue are standard and widely approved in public education. The State Board normally would be enthusiastic over enhancement of these programs so long as the local school board could fund them without requiring financial aid from the State. It is equally evident that the State probably would resist a federal-court order requiring it to pay unappropriated state funds to the local school board regardless of whether violations by the local board justified the remedy. The State's interest in protecting its own budget limited by legislative appropriations is a genuine one. But it is not an interest that is related, except fortuitously, to a claim that the desegregation remedy may have exceeded the extent of the violations.
73
The State's reliance on the remedy issue contains a further weakness, emphasizing the unusual character of this case. There is no indication that the State objected certainly, it does not object here to the inclusion in the District Court's decree of the seven other educational components. See n. 2, supra. Indeed, the State expressly agreed to one of the most expensive components, the establishment of vocational education cation centers, in a stipulation obligating it to share the cost of construction equally with the Detroit Board. See App. to Pet. for Cert. 139a-144a. Furthermore, the District Court's decree largely embodies the original recommendation of the Detroit Board. Since local school boards 'have the primary responsibility for elucidating, assessing, and solving (the) problems' generated by '(f)ull implementation of . . . constitutional principles' in the local setting, Brown v. Board of Education, 349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955), the State's limited challenge here is particularly lacking in force.
74
Moreover, the District Court was faced with a school district in exceptional disarray. It found the structure of the Detroit school system 'chaotic and incapable of effective administration.' App. to Pet. for Cert. 124a. The 'general superintendent has little direct authority.' Ibid. Each of the eight regional boards may be preoccupied with 'distribut(ing) local board patronage.' Id., at 125a. The 'local boards have diverted resources that would otherwise have been available for educational purposes to build new offices and other facilities to house this administrative overload.' Ibid. The District Court continued:
75
'In addition to the administrative chaos, we know of no other school system that is so enmeshed in politics . . ..
76
'. . . Rather than devoting themselves to the educational system and the desegregative process, board members are busily engaged in politics not only to assure their own re-election but also to defeat others with whom they disagree.' Id., at 125a-126a (footnote omitted).
77
Referring again to the 'political paralysis' and 'inefficient bureaucracy' of the system, the court also noted discouragingly that the election then approaching 'may well (result in) a board of education consisting of members possessing no experience in education.' Id., at 126a. In this quite remarkable situation, it is perhaps not surprising that the District Court virtually assumed the role of school superintendent and school board.3
78
Given the foregoing unique circumstances, it seems to me that the proper disposition of this case is to dismiss the writ of certiorari as improvidently granted. But as the Court has chosen to decide the case here, I join in the judgment as a result less likely to prolong the disruption of education in Detroit than a reversal or remand. Despite wideranging dicta in the Court's opinion, the only issue decided is that the District Court's findings as to specific constitutional violations justified the four remedial educational components included in the desegregation decree. In my view, it is at least arguable that the findings in this respect were too generalized to meet the standards prescribed by this Court. See Dayton Board of Education, 423 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851. But the majority views the record as justifying the conclusion that 'the need for educational components flowed directly from constitutional violations by both state and local officials.' Ante, at 282.4 On that view of the record, our settled doctrine requiring that the remedy be carefully tailored to fit identified constitutional violations is reaffirmed by today's result. I therefore concur in the judgment.
1
The violations of the Detroit Board of Education, which included the improper use of optional attendance zones, racially based transportation of schoolchildren, improper creation and alteration of attendance zones, grade structures, and feeder school patterns, are described in the District Court's initial 'Ruling on Issue of Segregation.' 338 F.Supp. 582, 587-588 (E.D.Mich.1971). The District Court further found that '(t)he State and its agencies . . . have acted directly to control and maintain the pattern of segregation in the Detroit schools.' Id., at 589. Indeed, when the Detroit School Board attempted to voluntarily initiate an intradistrict remedy to ameliorate the effect of the past segregation practices, the Michigan legislature enacted a law forbidding the carrying out of this remedy. Those conclusions as to liability were affirmed on appeal, 484 F.2d 215, 221-241 (C.A.6 1973), and were not challenged in this Court. 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I).
2
Separate opinions were filed in Milliken I. Mr. Justice STEWART, concurring, stated that the metropolitanwide remedy contemplated by the District Court was 'in error for the simple reason that the remedy . . . was not commensurate with the constitutional violation found.' 418 U.S., at 754, 94 S.Ct., at 3132. Dissenting opinions were filed by Mr. Justice DOUGLAS, Mr. Justice WHITE, and Mr. Justice MARSHALL. The dissenting opinions took the position, in brief, that the remedy was appropriate, given the State's undisputed constitutional violations, the control of local education by state authorities, and the manageability of any necessary administrative modifications to effectuate a metropolitanwide remedy.
3
According to the then most recent statistical data, as of September 27, 1974, 257,396 students were enrolled in the Detroit public schools, a figure which reflected a decrease of 28,116 students in the system since the 1960-1961 school year. 402 F.Supp. 1096, 1106-1107 (1975). Of this total student population, 71.5% were Negro and 26.4% were white. The remaining 2.1% were composed of students of other ethnic groups. Id., at 1106.
4
Under respondent Bradley's proposed plan in the remand proceedings, 71,349 students would have required transportation; the Detroit Board's plan, however, provided for transportation of 51,000 students, 20,000 less than the Bradley plan. The Board's plan, which the District Court found infirm because of an impermissible use of 'arbitrary' racial quotas, contemplated achieving a 40%-60% representation of Negro students in the identifiably white schools, while leaving untouched in terms of pupil reassignment schools in three of the Detroit system's eight regions. Those three regions, which were located in the central city, were overwhelmingly Negro in racial composition.
5
The fourth component, a remedial reading and communications skills program, was proposed later and was endorsed by the Bradley respondents in a critique of the Detroit Board's proposed plan. See n. 7, infra. The Board's plan also called for the following 'educational components': school-community relations, parental involvement, student rights and responsibilities, accountability, curriculum design, bilingual education, multiethnic curriculum, and cocurricular activities. 402 F.Supp., at 1118.
6
In addition to the State Board of Education, the state defendants include the Governor of Michigan, the Attorney General, the State Superintendent of Public Instruction, and the State Treasurer.
7
Two months later, the Bradley respondents also submitted a critique of the Board's plan; while criticizing the Board's proposed educational components on several grounds, respondents nonetheless suggested that a remedial reading program was particularly needed in a desegregation plan. See n. 5, supra. The Bradley respondents claimed more generally that the Board's plan failed to inform the court of the then-current extent of such programs or components in the school system and that the plan failed to assess 'the relatedness of the particular component to desegregation.'
8
The other state defendants likewise filed objections to the Detroit Board's plan on April 21, 1975. They contended, in brief, that the court's remedy was limited to pupil reassignment to achieve desegregation; hence, the proposed inclusion of educational components was, in their view, excessive.
9
For example, Dr. Charles P. Kearney, Associate Superintendent for Research and School Administration for the Michigan Department of Education, gave the following testimony:
'(T)he State Board and the Superintendent indicated that guidance and counselling appeared to deserve special emphasis in a desegregation effort.
'We support the notion of a guidance and counselling effort. We think it certainly does have a relationship in the desegregation effort, we think it deserves special emphasis.' 30 Record, Tr. 126, 129.
As to in-service training, Dr. Kearney testified that, in his opinion, such a program was required to implement effectively a desegregation plan in Detroit. Id., at 179, 187. Finally, even though the State's critique did not deem testing as deserving of 'special emphasis' in the desegregation follows:
'Q: (D)o you see a direct relationship between testing and desegregation?
'A: If test results were inappropriately used, . . . I think it would have certainly a discriminatory affect (sic) and it would have a negative affect, I'm sure on any kind of desegregation plan being implemented.' Id., at 184.
10
The District Court did not approve of all aspects of the Detroit Board's plan. With respect to educational components, the court said: 'The plan as submitted . . . does not distinguish between those components that are necessary to the successful implementation of a desegregation plan and those that are not.' 402 F.Supp. at 1118. (Emphasis supplied.)
11
In contrast to their position before the District Court with respect to the four educational components at issue here, the state defendants, through the State Board of Education, voluntarily entered into a stipulation with the Detroit Board on February 24, 1976, under which the State agreed to provide 50% of the construction costs of five vocational centers which the District Court ordered to be established. App. to Pet. for Cert. 139a-141a.
12
The Court of Appeals disapproved, however, of the District Court's failure to include three of Detroit's eight regions in the pupil assignment plan. See n. 4, supra. The Court of Appeals remanded the case to the District Court for further consideration of the three omitted regions, but declined to set forth guidelines, given the practicabilities of the situation, for the District Court's benefit. Further proceedings were deemed appropriate, however, particularly since the Bradley respondents had previously been granted leave to file a second amended complaint to allege interdistrict violations on the part of the state and local defendants.
13
In Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), the Court affirmed an order of the District Court which included a requirement of in-service training programs. 318 F.Supp. 786, 803 (W.D.N.C.1970). However, this Court's opinion did not treat the precise point. In Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), the Court expressly avoided passing on the District Court's holding that called for, among other things, 'compensatory education in an integrated environment.' Id., at 214 n. 18, 93 S.Ct., at 2700.
14
Thus, the Court has consistently held that the Constitution is not violated by racial imbalance in the schools, without more. Pasadena City Board of Educ. v. Spangler, 427 U.S. 424, 434, 96 S.Ct. 2697, 2703, 49 L.Ed.2d 599 (1976); Milliken I, 418 U.S., at 763, 94 S.Ct., at 3136 (WHITE, J., dissenting); Swann, supra, 402 U.S., at 26, 91 S.Ct., at 1281. An order contemplating the "substantive constitutional right (to a) particular degree of racial balance or mixing" is therefore infirm as a matter of law. Spangler, supra, 427 U.S., at 434, 96 S.Ct., at 2703.
15
Since the ultimate objective of the remedy is to make whole the victims of unlawful conduct, federal courts are authorized to implement plans that promise 'realistically to work now.' Green v. County School Board of New Kent County, 391 U.S. 430, 439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). At the same time, the Court has carefully stated that, to ensure that federal-court decrees are characterized by the flexibility and sensitivity required of equitable decrees, consideration must be given to burdensome effects resulting from a decree that could 'either risk the health of the children or significantly impinge on the educational process.' Swann, supra, 402 U.S., at 30-31, 91 S.Ct., at 1283. Our function, as stated by Mr. Justice WHITE, is 'to desegregate an educational system in which the races have been kept apart, without, at the same time, losing sight of the central educational function of the schools.' Milliken I, supra, 418 U.S., at 764, 94 S.Ct., at 3137 (dissenting opinion). (Emphasis in original.) In a word, '(t)here are undoubted practical as well as legal limits to the remedial powers of federal courts in school desegregation cases.' 418 U.S., at 763, 94 S.Ct., at 3136. Cf. Austin Independent School Dist. v. United States, 429 U.S. 990, 991, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976) (POWELL, J., concurring).
16
In denying the stay application, Mr. Justice Black was untroubled by the underlying order of the District Court:
'It would be very difficult for me to suspend the order of the District Court that, in my view, does no more than endeavor to realize the directive of the Fourteenth Amendment and the decisions of this Court that racial discrimination in the public schools must be eliminated root and branch.' 404 U.S., at 1207, 92 S.Ct., at 9.
17
We do not, of course, pass upon the correctness of the particular holdings of cases we did not review. We simply note that these holdings support the broader proposition that, when the record warrants, remedial programs may, in the exercise of equitable discretion, be appropriate remedies to treat the condition that offends the Constitution. Of course, it must always be shown that the constitutional violation caused the condition for which remedial programs are mandated.
18
This Court has from the beginning looked to the District Courts in desegregation cases, familiar as they are with the local situations coming before them, to appraise the efforts of local school authorities to carry out their constitutionally required duties. 'Because of their proximity to local conditions . . . the (federal district) courts which originally heard these cases can best perform this judicial appraisal.' Brown II, 349 U.S., at 299, 75 S.Ct., at 756.
19
Indeed, the District Judge took great pains to devise a workable plan with a minimum of pupil transportation. For example, he sought carefully to eliminate burdensome transportation of Negro children to predominantly Negro schools and to prevent the disruption, by massive pupil reassignment, of racially mixed schools in stable neighborhoods which had successfully undergone residential and educational change.
20
Although the complaint in Edelman ostensibly sought only equitable relief, the plaintiff expressly requested "a permanent injunction enjoining the defendants to award to the entire class of plaintiffs all (disability) benefits wrongfully withheld." 415 U.S., at 656, 94 S.Ct., at 1352.
21
Unlike the award in Edelman, the injunction entered here could not instantaneously restore the victims of unlawful conduct to their rightful condition. Thus, the injunction here looks to the future, not simply to presently compensating victims for conduct and consequences completed in the past.
22
In contrast to Edelman, there was no money award here in favor of respondent Bradley or any members of his class. This case simply does not involve individual citizens' conducting a raid on the state treasury for an accrued monetary liability. The order here is wholly prospective in the same manner that the decree mandates vocational schools and assignments, for example.
23
Because of our conclusion, we do not reach either of the two alternative arguments in support of the District Court's judgment, namely, that the State of Michigan expressly waived its Eleventh Amendment immunity by virtue of M.C.L.A. § 388.1007, Mich.Stat.Ann. § 15.1023(7) (1975), and that the Fourteenth Amendment, ex proprio vigore, works a pro tanto repeal of the Eleventh Amendment. Cf. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Neither question was addressed by the Court of Appeals, and we therefore do not pass on either issue.
1
Until the case reached this Court the plaintiffs apparently did not view the educational components as necessary or even important elements of a desegregation plan. These components were not included in plans submitted by the plaintiffs, and in briefs filed below there were indications that the plaintiffs viewed some if not all of these components as being 'wholly unrelated to desegregation of students and faculty in schools.' Brief for Plaintiffs-Appellants 5 n. 6 in the Court of Appeals, No. 75-2018 (filed Dec. 29, 1975).
2
In addition to these four components, there were some seven other educational directives that are not contested here. (The details are set forth in the opinions and decrees of August 15, 1975, November 4 and 20, 1975, and May 11, 1976, all of which are reproduced in full in the appendix to the petition for certiorari. The first two such opinions also have been published. 402 F.Supp. 1096; 411 F.Supp. 943.) Perhaps the most expansive component was the District Court's order that the city and state boards create five vocational centers 'devoted to in-depth occupational preparation in the construction trades, transportation and health services.' 402 F.Supp., at 1140. As noted in the text infra, at 296, a compromise was reached as to these centers and the State entered into a stipulation obligating it to share the cost of providing them. See App. to Pet. for Cert. 139a-144a. The other educational components ordered by the District Court included: (i) 'two new technical high schools in which business education will be the central part of the curriculum,' App. 75a; (ii) a new curriculum for the vocational education courses in the Detroit schools, including the requirement that an additional 'grade 13' be added to afford expanded educational opportunities, 402 F.Supp., at 1140. (iii) the inclusion of 'multiethnic studies' in the curriculum, with a request for federal funds to support 'in-service training for teachers involved in such programs,' Id., at 1144, App. to Pet. for Cert. 147a; (iv) a 'Uniform Code of Conduct,' which the Board was ordered to develop pursuant to guidelines established by the court, 402 F.Supp., at 1142, App. to Pet. for Cert. 148a; (v) a specific plan for 'co-curricular activities' with other artistic and educational institutions in the area, to be developed by the Board and submitted for court approval, 402 F. Supp., at 1143; and (vi) a 'community relations program' prescribed in remarkable detail by the court. Ibid., App. to Pet. for Cert. 131a-135a.
In most, if not all, instances the court ordered that each of these programs be 'comprehensive,' and that reports be made to the court. One may doubt whether there is any precedent for a federal court's exercising such extensive control over the purely educational responsibilities of a school board.
3
It merits emphasizing that the School Board invited this assumption of power. Indeed, the District Court had complimented the Board on its willingness to 'implement any desegregation order the court may issue.' 402 F.Supp., at 1125. But at one point there were serious second thoughts. In its brief in the Court of Appeals, the Board expressed grave concern as to what the District Court's assumption of the Board's powers could do to the school system financially:
'(O)n May 11, 1976 . . . the District Court ordered equalization of all school facilities and buildings preparatory to the 1976-77 school term; continuance of the comprehensive construction and renovation program; (and implementation of the educational components summarized in n. 2, supra). . . .
'Even without actual dollar figures, the financial impact of these orders could easily destroy the educational program of the Detroit school system. The financing of these components by the Detroit school system would only mean a concomitant elimination of existing programs.
'It is virtually impossible for the Detroit Board of Education to re-order its priorities when it is already operating on a woefully inadequate budget that cannot provide a minimal quality educational program. Any attempt to redistribute available resources will cause further deterioration in on-going educational programs and will merely result in robbing Peter to pay Paul.' Reprinted in the Appendix to the opinion of the Court of Appeals, 540 F.2d 229, 250-251 (CA 6) (emphasis added).
To say the least, the financial impact of the court's decree was profoundly disturbing. But apparently the financially pressed Board was willing to surrender a substantial portion of its decisionmaking authority in return for the prospect of enhanced state funding. For by the time it made this statement to the Court of Appeals, the Board knew that the District Court had exercised its power to do what the state legislature had chosen not to do: appropriate funds from the state treasury for these particular programs of the Detroit schools.
4
The Court's opinion states, for example, that the District Court 'expressly found that the two components of testing and counseling, as then administered in Detroit's schools, were infected with the discriminatory bias of a segregated school system.' Ante, at 274-275.
| 12
|
433 U.S. 562
97 S.Ct. 2849
53 L.Ed.2d 965
Hugo ZACCHINI, Petitioner,v.SCRIPPS-HOWARD BROADCASTING COMPANY.
No. 76-577.
Argued April 25, 1977.
Decided June 28, 1977.
Syllabus
Petitioner's 15-second 'human cannonball' act, in which he is shot from a cannon into a net some 200 feet away, was, without his consent, videotaped in its entirety at a county fair in Ohio by a reporter for respondent broadcasting company and shown on a television news program later the same day. Petitioner then brought a damages action in state court against respondent, alleging an 'unlawful appropriation' of his 'professional property.' The trial court's summary judgment for respondent was reversed by the Ohio Court of Appeals on the ground that the complaint stated a cause of action. The Ohio Supreme Court, while recognizing that petitioner had a cause of action under state law on his 'right to the publicity value of his performance,' nevertheless, relying on Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456, rendered judgment for respondent on the ground that it is constitutionally privileged to include in its newscasts matters of public interest that would otherwise be protected by the right of publicity, absent an intent to injure or to appropriate for some nonprivileged purpose. Held:
1. It appears from the Ohio Supreme Court's opinion syllabus (which is to be looked to for the rule of law in the case), as clarified by the opinion itself, that the judgment below did not rest on an adequate and independent state ground but rested solely on federal grounds in that the court considered the source of respondent's privilege to be the First and Fourteenth Amendments, and therefore this Court has jurisdiction to decide the federal issue. Pp. 566-568.
2. The First and Fourteenth Amendments do not immunize the news media when they broadcast a performer's entire act without his consent, and the Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner, or to film or broadcast a prize fight or a baseball game, where the promoters or participants had other plans for publicizing the event. Time, Inc. v. Hill, supra, distinguished. Pp. 569-579.
(a) The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance, since (1) if the public can see the act free on television it will be less willing to pay to see it at the fair, and (2) the broadcast goes to the heart of petitioner's ability to earn a living as an entertainer. Pp. 575-576.
(b) The protection of petitioner's right of publicity provides an economic incentive for him to make the investment required to produce a performance of interest to the public. Pp. 576-577.
(c) While entertainment, as well as news, enjoys First Amendment protection, and entertainment itself can be important news, neither the public nor respondent will be deprived of the benefit of petitioner's performance as long as his commercial stake in his act is appropriately recognized. P. 578.
(d) Although the State may as a matter of its own law privilege the press in the circumstances of this case, the First and Fourteenth Amendments do not require it to do so. Pp. 578-579.
47 Ohio St.2d 224, 351 N.E.2d 454, reversed.
John G. Lancione, Fairview Park, Ohio, for petitioner.
Ezra K. Bryan, Cleveland, Ohio, for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Petitioner, Hugo Zacchini, is an entertainer. He performs a 'human cannonball' act in which he is shot from a cannon into a net some 200 feet away. Each performance occupies some 15 seconds. In August and September 1972, petitioner was engaged to perform his act on a regular basis at the Geauga County Fair in Burton, Ohio. He performed in a fenced area, surrounded by grandstands, at the fair grounds. Members of the public attending the fair were not charged a separate admission fee to observe his act.
2
On August 30, a freelance reporter for Scripps-Howard Broadcasting Co., the operator of a television broadcasting station and respondent in this case, attended the fair. He carried a small movie camera. Petitioner noticed the reporter and asked him not to film the performance. The reporter did not do so on that day; but on the instructions of the producer of respondent's daily newscast, he returned the following day and videotaped the entire act. This film clip approximately 15 seconds in length, was shown on the 11 o'clock news program that night, together with favorable commentary.1
3
Petitioner then brought this action for damages, alleging that he is 'engaged in the entertainment business,' that the act he performs is one 'invented by his father and . . . performed only by his family for the last fifty years,' that respondent 'showed and commercialized the film of his act without his consent,' and that such conduct was an 'unlawful appropriation of plaintiff's professional property.' App. 4-5. Respondent answered and moved for summary judgment, which was granted by the trial court.
4
The Court of Appeals of Ohio reversed. The majority held that petitioner's complaint stated a cause of action for conversion and for infringement of a common-law copyright, and one judge concurred in the judgment on the ground that the complaint stated a cause of action for appropriation of petitioner's 'right of publicity' in the film of his act. All three judges agreed that the First Amendment did not privilege the press to show the entire performance on a news program without compensating petitioner for any financial injury he could prove at trial.
5
Like the concurring judge in the Court of Appeals, the Supreme Court of Ohio rested petitioner's cause of action under state law on his 'right to the publicity value of his performance.' 47 Ohio St.2d 224, 351 N.E.2d 454, 455 (1976). The opinion syllabus, to which we are to look for the rule of law used to decide the case,2 declared first that one may not use for his own benefit the name or likeness of another, whether or not the use or benefit is a commercial one, and second that respondent would be liable for the appropriation over petitioner's objection and in the absence of license or privilege, of petitioner's right to the publicity value of his performance. Ibid. The court nevertheless gave judgment for respondent because, in the words of the syllabus:
6
'A TV station has a privilege to report in its newscasts matters of legitimate public interest which would otherwise be protected by an individual's right of publicity, unless the actual intent of the TV station was to appropriate the benefit of the publicity for some non-privileged private use, or unless the actual intent was to injure the individual.' Ibid.
7
We granted certiorari, 429 U.S. 1037, 97 S.Ct. 730, 50 L.Ed.2d 747 (1977), to consider an issue unresolved by this Court: whether the First and Fourteenth Amendments immunized respondent from damages for its alleged infringement of petitioner's statelaw 'right of publicity.' Pet. for Cert. 2. Insofar as the Ohio Supreme Court held that the First and Fourteenth Amendments of the United States Constitution required judgment for respondent, we reverse the judgment of that court.
8
* If the judgment below rested on an independent and adequate state ground, the writ of certiorari should be dismissed as improvidently granted, Wilson v. Loew's Inc., 355 U.S. 597, 78 S.Ct. 526, 2 L.Ed.2d 519 (1958), for '(o)ur only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.' Herb v. Pitcairn, 324 U.S. 117, 125-126, 65 S.Ct. 459, 463, 89 L.Ed. 789 (1945). We are confident, however, that the judgment below did not rest on an adequate and independent state ground and that we have jurisdiction to decide the federal issue presented in this case.
9
There is no doubt that petitioner's complaint was grounded in state law and that the right of publicity which petitioner was held to possess was a right arising under Ohio law. It is also clear that respondent's claim of constitutional privilege was sustained. The source of this privilege was not identified in the syllabus. It is clear enough from the opinion of the Ohio Supreme Court, which we are permitted to consult for understanding of the syllabus, Perkins v. Benguet Consolicated Mining Co., 342 U.S. 437, 441-443, 72 S.Ct. 413, 416-417, 96 L.Ed. 485 (1952),3 that in adjudicating the crucial question of whether respondent had a privilege to film and televise petitioner's performance, the court placed principal reliance on Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), a case involving First Amendment limitations on state tort actions. It construed the principle of that case, along with that of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), to be that 'the press has a privilege to report matters of legitimate public interest even though such reports might intrude on matters otherwise private,' and concluded, therefore, that the press is also 'privileged when an individual seeks to publicly exploit his talents while keepting the benefits private.' 47 Ohio St.2d, at 234, 351 N.E.2d, at 461. The privilege thus exists in cases 'where appropriation of a right of publicity is claimed.' The court's opinion also referred to Draft 21 of the relevant portion of Restatement (Second) of Torts (1975), which was understood to make room for reasonable press appropriations by limiting the reach of the right of privacy rather than by creating a privileged invasion. The court preferred the notion of privilege over the Restatement's formulation, however, reasoning that 'since the gravamen of the issue in this case is not whether the degree of intrusion is reasonable, but whether First Amendment principles require that the right of privacy give way to the public right to be informed of matters of public interest and concern, the concept of privilege seems the more useful and appropriate one.' 47 Ohio St.2d, at 234 n. 5, 351 N.E.2d, at 461 n. 5. (Emphasis added.)
10
Had the Ohio court rested its decision on both state and federal grounds, either of which would have been dispositive, we would have had no jurisdiction. Fox Film Corp. v. Muller, 296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158 (1935); Enterprise Irrigation District v. Farmers Mutual Canal Company, 243 U.S. 157, 164, 37 S.Ct. 318, 320, 61 L.Ed. 644 (1917). But the opinion, like the syllabus, did not mention the Ohio Constitution, citing instead this Court's First Amendment cases as controlling. It appears to us that the decision rested solely on federal grounds. That the Ohio court might have, but did not, invoke state law does not foreclose jurisdiction here. Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 197 n. 1, 65 S.Ct. 226, 229, 89 L.Ed. 173 (1944); Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 98, 58 S.Ct. 443, 445, 82 L.Ed. 685 (1938).
11
Even if the judgment in favor of respondent must nevertheless be understood as ultimately resting on Ohio law, it appears that at the very least the Ohio court felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did. In this event, we have jurisdiction and should decide the federal issue; for if the state court erred in its understanding of our cases and of the First and Fourteenth Amendments, we should so declare, leaving the state court free to decide the privilege issue solely as a matter of Ohio law. Perkins v. Benguet Consolidated Mining Co., supra. 'If the Supreme Court of Ohio 'held as it did because it felt under compulsion of federal law as enunciated by this Court so to hold, it should be relieved of that compulsion. It should be freed to decide . . . these suits according to it own local law.' Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1, 5, 71 S.Ct. 1, 3, 95 L.Ed. 3 (1950).
II
12
The Ohio Supreme Court held that respondent is constitutionally privileged to include in its newscasts matters of public interest that would otherwise be protected by the right of publicity, absent an intent to injure or to appropriate for some nonprivileged purpose. If under this standard respondent had merely reported that petitioner was performing at the fair and described or commented on his act, with or without showing his picture on television, we would have a very different case. But petitioner is not contending that his appearance at the fair and his performance could not be reported by the press as newsworthy items. His complaint is that respondent filmed his entire act and displayed that film on television for the public to see and enjoy. This, he claimed, was an appropriation of his professional property. The Ohio Supreme Court agreed that petitioner had 'a right of publicity' that gave him 'personal control over commercial display and exploitation of his personality and the exercise of his talents.'4 This right of 'exclusive control over the publicity given to his performances' was said to be such a 'valuable part of the benefit which may be attained by his talents and efforts' that it was entitled to legal protection. It was also observed, or at least expressly assumed, that petitioner had not abandoned his rights by performing under the circumstances present at the Geauga County Fair Grounds.
13
The Ohio Supreme Court nevertheless held that the challenged invasion was privileged, saying that the press 'must be accorded broad latitude in its choice of how much it presents of each story or incident, and of the emphasis to be given to such presentation. No fixed standard which would bar the press from reporting or depicting either an entire occurrence or an entire discrete part of a public performance can be formulated which would not unduly restrict the 'breathing room' in reporting which freedom of the press requires.' 47 Ohio St.2d, at 235, 351 N.E.2d, at 461. Under this view, respondent was thus constitutionally free to film and display petitioner's entire act.5
14
The Ohio Supreme Court relied heavily on Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), but that case does not mandate a media privilege to televise a performer's entire act without his consent. Involved in Time, Inc. v. Hill was a claim under the New York 'Right of Privacy' statute6 that Life Magazine, in the course of reviewing a new play, had connected the play with a long-past incident involving petitioner and his family and had falsely described their experience and conduct at that time. The complaint sought damages for humiliation and suffering flowing from these nondefamatory falsehoods that allegedly invaded Hill's privacy. The Court held, however, that the opening of a new play linked to an actual incident was a matter of public interest and that Hill could not recover without showing that the Life report was knowingly false or was published with reckless disregard for the truth the same rigorous standard that had been applied in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
15
Time, Inc. v. Hill, which was hotly contested and decided by a divided Court, involved an entirely different tort from the 'right of publicity' recognized by the Ohio Supreme Court. As the opinion reveals in Time, Inc. v. Hill, the Court was steeped in the literature of privacy law and was aware of the developing distinctions and nuances in this branch of the law. The Court, for example, cited W. Prosser, Law of Torts 831-832 (3d ed. 1964), and the same author's well-known article, Privacy, 48 Calif.L.Rev. 383 (1960), both of which divided privacy into four distinct branches.7 The Court was aware that it was adjudicating a 'false light' privacy case involving a matter of public interest, not a case involving 'intrusion,' 385 U.S., at 384-385, n. 9, 87 S.Ct., at 540, 'appropriation' of a name or likeness for the purposes of trade, id., at 381, 87 S.Ct., at 538, or 'private details' about a non-newsworthy person or event, id., at 383 n. 7, 87 S.Ct., at 539. It is also abundantly clear that Time, Inc. v. Hill did not involve a performer, a person with a name having commercial value, or any claim to a 'right of publicity.' This discrete kind of 'appropriation' case was plainly identified in the literature cited by the Court8 and had been adjudicated in the reported cases.9
16
The differences between these two torts are important. First, the State's interests in providing a cause of action in each instance are different. 'The interest protected' in permitting recovery for placing the plaintiff in a false light 'is clearly that of reputation, with the same overtones of mental distress as in defamation.' Prosser, supra, 48 Calif.L.Rev., at 400. By contrast, the State's interest in permitting a 'right of publicity' is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment.10 As we later note, the State's interest is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation. Second, the two torts differ in the degree to which they intrude on dissemination of information to the public. In 'false light' cases the only way to protect the interests involved is to attempt to minimize publication of the damaging matter, while in 'right of publicity' cases the only question is who gets to do the publishing. An entertainer such as petitioner usually has no objection to the widespread publication of his act as long as the gets the commercial benefit of such publication. Indeed, in the present case petitioner did not seek to enjoin the broadcast of his act; he simply sought compensation for the broadcast in the form of damages.
17
Nor does it appear that our later cases, such as Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); and Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), require or furnish substantial support for the Ohio court's privilege ruling. These cases, like New York Times, emphasize the protection extended to the press by the First Amendment in defamation cases, particularly when suit is brought by a public official or a public figure. None of them involve an alleged appropriation by the press of a right of publicity existing under state law.
18
Moreover, Time, Inc. v. Hill, New York Times, Metromedia, Gertz, and Firestone all involved the reporting of events; in none of them was there an attempt to broadcast or publish an entire act for which the performer ordinarily gets paid. It is evident, and there is no claim here to the contrary, that petitioner's state-law right of publicity would not serve to prevent respondent from reporting the newsworthy facts about petitioner's act.11 Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent. The Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner. Copyrights Act, 17 U.S.C.App. § 101 et seq. (1976 ed.); cf. Kalem Co. v. Harper Bros., 222 U.S. 55, 32 S.Ct. 20, 56 L.Ed. 92 (1911); Manners v. Morosco, 252 U.S. 317, 40 S.Ct. 335, 64 L.Ed. 590 (1920), or to film and broadcast a prize fight, Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481 (CA3), cert. denied, 351 U.S. 926, 76 S.Ct. 783, 100 L.Ed. 1456 (1956); or a baseball game, Pittsburgh Athletic Co. v. KQV Broadcasting Co., 24 F.Supp. 490 (WD Pa. 1938), where the promoters or the participants had other plans for publicizing the event. There are ample reasons for reaching this conclusion.
19
The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance. As the Ohio court recognized, this act is the product of petitioner's own talents and energy, the end result of much time, effort, and expense. Much of its economic value lies in the 'right of exclusive control over the publicity given to his performance'; if the public can see the act free on television, it will be less willing to pay to see it at the fair.12 The effect of a public broadcast of the performance is similar to preventing petitioner from charging an admission fee. 'The rationale for (protecting the right of publicity) is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.' Kalven, Privacy in Tort Law Were Warren and Brandeis Wrong?, 31 Law & Contemp. Prob. 326, 331 (1966). Moreover, the broadcast of petitioner's entire performance, unlike the unauthorized use of another's name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of petitioner's ability to earn a living as an entertainer. Thus, in this case, Ohio has recognized what may be the strongest case for a 'right of publicity' involving, not the appropriation of an entertainer's reputation to enhance the attractiveness of a commercial product, but the appropriation of the very activity by which the entertainer acquired his reputation in the first place.
20
Of course, Ohio's decision to protect petitioner's right of publicity here rests on more than a desire to compensate the performer for the time and effort invested in his act; the protection provides an economic incentive for him to make the investment required to produce a performance of interest to the public. This same consideration underlies the patent and copyright laws long enforced by this Court. As the Court stated in Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954):
21
'The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts.' Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.' These laws perhaps regard the 'reward to the owner (as) a secondary consideration,' United States v. Paramount Pictures, 334 U.S. 131, 158, 68 S.Ct. 915, 929, 92 L.Ed. 1260 (1948), but they were 'intended definitely to grant valuable, enforceable rights' in order to afford greater encouragement to the production of works of benefit to the public. Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 36, 59 S.Ct. 397, 400, 83 L.Ed. 470 (1939). The Constitution does not prevent Ohio from making a similar choice here in deciding to protect the entertainer's incentive in order to encourage the production of this type of work. Cf. Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973); Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974).13 There is no doubt that entertainment, as well as news, enjoys First Amendment protection. It is also true that entertainment itself can be important news. Time, Inc. v. Hill. But it is important to note that neither the public nor respondent will be deprived of the benefit of petitioner's performance as long as his commercial stake in his act is appropriately recognized. Petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it. Nor do we think that a state-law damages remedy against respondent would represent a species of liability without fault contrary to the letter or spirit of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Respondent knew that petitioner objected to televising his act, but nevertheless displayed the entire film.
22
We conclude that although the State of Ohio may as a matter of its own law privilege the press in the circumstances of this case, the First and Fourteenth Amendments do not require it to do so.
23
Reversed.
24
Mr. Justice POWELL, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
25
Disclaiming any attempt to do more than decide the narrow case before us, the Court reverses the decision of the Supreme Court of Ohio based on repeated incantation of a single formula: 'a performer's entire act.' The holding today is summed up in one sentence:
26
'Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent.' Ante, at 574-575.
27
I doubt that this formula provides a standard clear enough even for resolution of this case.1 In any event, I am not persuaded that the Court's opinion is appropriately sensitive to the First Amendment values at stake, and I therefore dissent.
28
Although the Court would draw no distinction, ante, at 575, I do not view respondent's action as comparable to unauthorized commercial broadcasts of sporting events, theatrical performances, and the like where the broadcaster keeps the profits. There is no suggestion here that respondent made any such use of the film. Instead, it simply reported on what petitioner concedes to be a newsworthy event, in a way hardly surprising for a television station by means of film coverage. The report was part of an ordinary daily news program, consuming a total of 15 seconds. It is a routine example of the press' fulfilling the informing function so vital to our system.
29
The Court's holding that the station's ordinary news report may give rise to substantial liability2 has disturbing implications, for the decision could lead to a degree of media self-censorship. Cf. Smith v. California, 361 U.S. 147, 150-154, 80 S.Ct. 215, 217-219, 4 L.Ed.2d 205 (1959). Hereafter, whenever a television news editor is unsure whether certain film footage received from a camera crew might be held to portray an 'entire act,'3 he may decline coverage even of clearly newsworthy events or confine the broadcast to watered-down verbal reporting, perhaps with an occasional still picture. The public is then the loser. This is hardly the kind of news reportage that the First Amendment is meant to foster. See generally Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257-258, 94 S.Ct. 2831, 2839, 41 L.Ed.2d 730 (1974); Time, Inc. v. Hill, 385 U.S. 374, 389, 87 S.Ct. 534, 542, 17 L.Ed.2d 456 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 270-272, 279, 84 S.Ct. 710, 720-721, 725, 11 L.Ed.2d 686 (1964).
30
In my view the First Amendment commands a different analytical starting point from the one selected by the Court. Rather than begin with a quantitative analysis of the performer's behavior is this or is this not his entire act? we should direct initial attention to the actions of the news media: what use did the station make of the film footage? When a film is used, as here, for a routine portion of a regular news program, I would hold that the First Amendment protects the station from a 'right of publicity' or 'appropriation' suit, absent a strong showing by the plaintiff that the news broadcast was a subterfuge or cover for private or commercial exploitation.4
31
I emphasize that this is a 'reappropriation' suit, rather than one of the other varieties of 'right of privacy' tort suits identified by Dean Prosser in his classic article. Prosser, Privacy, 48 Calif.L.Rev. 383 (1960). In those other causes of action the competing interests are considerably different. The plaintiff generally seeks to avoid any sort of public exposure, and the existence of constitutional privilege is therefore less likely to turn on whether the publication occurred in a news broadcast or in some other fashion. In a suit like the one before us, however, the plaintiff does not complain about the fact of exposure to the public, but rather about its timing or manner. He welcomes some publicity, but seeks to retain control over means and manner as a way to maximize for himself the monetary benefits that flow from such publication. But having made the matter public having chosen, in essence, to make it newsworthy he cannot, consistent with the First Amendment, complain of routine news reportage. Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-348, 351-352, 94 S.Ct. 2997, 3006-3011, 3012-3013, 41 L.Ed.2d 789 (1974) (clarifying the different liability standards appropriate in defamation suits, depending on whether or not the plaintiff is a public figure).
32
Since the film clip here was undeniably treated as news and since there is no claim that the use was subterfuge, respondent's actions were constitutionally privileged. I would affirm.
33
Mr. Justice STEVENS, dissenting.
34
The Ohio Supreme Court held that respondent's telecast of the 'human cannonball' was a privileged invasion of petitioner's common-law 'right of publicity' because respondent's actual intent was neither (a) to appropriate the benefit of the publicity for a private use, nor (b) to injure petitioner.*
35
As I read the state court's explanation of the limits on the concept of privilege, they define the substantive reach of a commonlaw tort rather than anything I recognize as a limit on a federal constitutional right. The decision was unquestionably influenced by the Ohio court's proper sensitivity to First Amendment principles, and to this Court's cases construing the First Amendment; indeed, I must confess that the opinion can be read as resting entirely on federal constitutional grounds. Nevertheless, the basis of the state court's action is sufficiently doubtful that I would remand the case to that court for clarification of its holding before deciding the federal constitutional issue.
1
The script of the commentary accompanying the film clip read as follows:
'This . . . now . . . is the story of a true spectator sport . . . the sport of human cannonballing . . . in fact, the great Zacchini is about the only human cannonball around, these days . . . just happens that, where he is, is the Great Geauga County Fair, in Burton . . . and believe me, although it's not a long act, it's a thriller . . . and you really need to see it in person . . . to appreciate it. . . .' (Emphasis in original.) App. 12.
2
Beck v. Ohio, 379 U.S. 89, 93 n. 2, 85 S.Ct. 223, 226, 13 L.Ed.2d 142 (1964); Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 441-443, 72 S.Ct. 413, 416-417, 96 L.Ed. 485 (1952); Minnesota v. National Tea Co., 309 U.S. 551, 554, 60 S.Ct. 676, 678, 84 L.Ed. 920 (1940). See Cassidy v. Glossip, 12 Ohio St.2d 17, 231 N.E.2d 64 (1967); Williamson Heater Co. v. Radich, 128 Ohio St. 124, 190 N.E. 403 (1934); Thackery v. Helfrich, 123 Ohio St. 334, 336, 175 N.E. 449, 450 (1931); State v. Hauser, 101 Ohio St. 404, 408, 131 N.E. 66, 67 (1920); 14 Ohio Jur.2d, Courts § 247 (1955).
3
In Perkins the issue was whether the Ohio courts could exercise personal jurisdiction over a foreign corporation. The syllabus of the Ohio Supreme Court declared that it did not have personal jurisdiction, but it gave no indication of whether the Ohio court's decision rested on state grounds or on the Fourteenth Amendment. The only opinion filed with the syllabus reasoned, however, that the Due Process Clause of the Fourteenth Amendment prohibited the Ohio courts from exercising personal jurisdiction in that case. While recognizing the existence of the Ohio syllabus rule, this Court felt obliged in these circumstances to reach the merits of the constitutional issue, holding that the Due Process Clause did not preclude the exercise of jurisdiction. '(F) or us to allow the judgment to stand as it is would risk an affirmance of a decision which might have been decided differently if the court below had felt free, under our decisions, to do so.' 342 U.S., at 443, 72 S.Ct., at 417.
The Ohio courts do not suggest that the opinion is not relevant to a determination of the Ohio Supreme Court's holding.
'The syllabus is the language of the court. The opinion is more particularly the language of the judge preparing the same, and yet so much of the opinion as is reasonably necessary to sustain the judgment must of necessity be concurred in by the court.' Hart v. Andrews, 103 Ohio St. 218, 221, 132 N.E. 846, 847 (1921) (emphasis added).
See also Williamson Heater Co., supra; State v. Hauser, supra.
4
The court relied on Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340, 341 (1956), the syllabus of which held:
'An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.'
The court also indicated that the applicable principles of Ohio law were those set out in Restatement (Second) § 652C of Torts (Tent. Draft No. 13, 1967), and the comments thereto, portions of which were stated in the footnotes of the opinion. Also, referring to the right as the 'right of publicity,' the court quoted approvingly from Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (CA2 1953).
5
The court's explication was as follows:
'The proper standard must necessarily be whether the matters reported were of public interest, and if so, the press will be liable for appropriation of a performer's right of publicity only if its actual intent was not to report the performance, but, rather, to appropriate the performance for some other private use, or if the actual intent was to injure the performer. It might also be the case that the press would be liable if it recklessly disregarded contract rights existing between the plaintiff and a third person to present the performance to the public, but that question is not presented here.' 47 Ohio St.2d, at 235, 351 N.E.2d, at 461.
6
Section 51 of the New York Civil Rights Law (McKinney 1976) provides an action for injunction and damages for invasion of the 'right of privacy' granted by § 50:
'A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.'
7
'The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff . . . 'to be let alone." Prosser, Privacy, 48 Calif.L.Rev., at 389. Thus, according to Prosser, some courts had recognized a cause of action for 'intrusion' upon the plaintiff's seclusion or solitude; public disclosure of 'private facts' about the plaintiff's personal life; publicity that places the plaintiff in a 'false light' in the public eye; and 'appropriation' of the plaintiff's name or likeness for commercial purposes. One may be liable for 'appropriation' if he 'pirate(s) the plaintiff's identity for some advantage of his own.' Id., at 403.
8
See, for example, W. Prosser, Law of Torts 842 (3d ed. 1964); Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L.Rev. 962, 986-991 (1964); Kalven, Privacy in Tort Law Were Warren and Brandeis Wrong?, 31 Law & Contemp.Prob. 326, 331 (1966).
9
E. g., Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481 (CA3), cert. denied, 351 U.S. 926, 76 S.Ct. 783, 100 L.Ed. 1456 (1956); Sharkey v. National Broadcasting Co., Inc., 93 F.Supp. 986 (S.D.N.Y.1950); Pittsburgh Athletic Co. v. KQV Broadcasting Co., 24 F.Supp. 490 (WD Pa. 1938); Twentieth Century Sporting Club, Inc. v. Transradio Press Service, Inc., 165 Misc. 71, 300 N.Y.S. 159 (1937); Hogan v. A. S. Barnes & Co., Inc., 114 U.S.P.Q. 314 (Pa.Ct.C.P. 1957); Myers v. U. S. Camera Publishing Corp., 9 Misc.2d 765, 167 N.Y.S.2d 771 (1957). The cases prior to 1961 are helpfully reviewed in Gordon, Right of Property in Name, Likeness, Personality and History, 55 Nw.U.L.Rev. 553 (1960).
Ettore v. Philco Television Broadcasting Corp., supra, involved a challenge to television exhibition of a film made of a prize fight that had occurred some time ago. Judge Biggs, writing for the Court of Appeals, said:
'There are, speaking very generally, two polar types of cases. One arises when some accidental occurrence rends the veil of obscurity surrounding an average person and makes him, arguably, newsworthy. The other type involves the appropriation of the performance or production of a professional performer or entrepreneur. Between the two extremes are many gradations, most involving strictly commercial exploitation of some aspect of an individual's personality, such as his name or picture.' 229 F.2d, at 486.
'. . . The fact, is that, if a performer performs for hire, a curtailment, without consideration, of his right to control his performance is a wrong to him. Such a wrong vitally affects his livelihood, precisely as a trade libel, for example, affects the earnings of a corporation. If the artistry of the performance be used as a criterion, every judge perforce must turn himself into a literary, theatrical or sports critic.' Id., at 490.
10
The Ohio Supreme Court expressed the view 'that plaintiff's claim is one for invasion of the right of privacy by appropriation, and should be considered as such.' 47 Ohio St.2d, at 226, 351 N.E.2d, at 456. It should be noted, however, that the case before us is more limited than the broad category of lawsuits that may arise under the heading of 'appropriation.' Petitioner does not merely assert that some general use, such as advertising, was made of his name or likeness; he relies on the much narrower claim that respondent televised an entire act that he ordinarily gets paid to perform.
11
W. Prosser, Law of Torts 806-807 (4th ed. 1971), generalizes on the cases:
'The New York courts were faced very early with the obvious fact that newspapers and magazines, to say nothing of radio, television and motion pictures, are by no means philanthropic institutions, but are operated for profit. As against the contention that everything published by these agencies must necessarily be 'for purposes of trade,' they were compelled to hold that there must be some closer and more direct connection, beyond the mere fact that the newspaper itself is sold; and that the presence of advertising matter in adjacent columns, or even the duplication of a news item for the purpose of advertising the publication itself, does not make any difference. Any other conclusion would in all probability have been an unconstitutional interference with the freedom of the press. Accordingly, it has been held that the mere incidental mention of the plaintiff's name in a book or a motion picture is not an invasion of his privacy; nor is the publication of a photograph or a newsreel in which he incidentally appears.' (Footnotes omitted.) Cf. Restatement (Second) of Torts § 652C, Comment d (Tent. Draft No. 22, 1976).
12
It is possible, of course, that respondent's news broadcast increased the value of petitioner's performance by stimulating the public's interest in seeing the act live. In these circumstances, petitioner would not be able to prove damages and thus would not recover. But petitioner has alleged that the broadcast injured him to the extent of $25,000, App. 5, and we think the State should be allowed to authorize compensation of this injury if proved.
13
Goldstein involved a California statute outlawing 'record piracy' the unauthorized duplication of recordings of performances by major musical artists. Petitioners there launched a multifaceted constitutional attack on the statute, but they did not argue that the statute violated the First Amendment. In rejecting this broad-based constitutional attack, the Court concluded:
'The California statutory scheme evidences a legislative policy to prohibit 'tape piracy' and 'record piracy,' conduct that may adversely affect the continued production of new recordings, a large industry in California. Accordingly, the State has, by statute, given to recordings the attributes of property. No restraint has been placed on the use of an idea or concept; rather, petitioners and other individuals remain free to record the same compositions in precisely the same manner and with the same personal as appeared on the original recording.
'Until and unless Congress takes further action with respect to recordings . . ., the California statute may be enforced against acts of piracy such as those which occurred in the present case.' 412 U.S., at 571, 93 S.Ct., at 2317. (Emphasis added.)
We note that Federal District Courts have rejected First Amendment challenges to the federal copyright law on the ground that 'no restraint (has been) placed on the use of an idea or concept.' United States v. Bodin, 375 F.Supp. 1265, 1267 (W.D.Okl.1974). See also Walt Disney Productions v. Air Pirates, 345 F.Supp. 108, 115-116 (N.D.Cal.1972) (citing Nimmer, Does Copyright Abridge The First Amendment Guaran-
tees of Free Speech and Press?, 17 UCLA Rev. 1180 (1970), who argues that copyright law does not abridge the First Amendment because it does not restrain the communication of ideas or concepts); Robert Stigwood Group Ltd. v. O'Reilly, 346 F.Supp. 376 (Conn.1972) (also relying on Nimmer, supra). Of course, this case does not involve a claim that respondent would be prevented by petitioner's 'right of publicity' from staging or filming its own 'human cannonball' act.
In Kewanee this Court upheld the constitutionality of Ohio's trade-secret law, although again no First Amendment claim was presented. Citing Goldstein, the Court stated:
'Just as the States may exercise regulatory power over writings so may the States regulate with respect to discoveries. States may hold diverse viewpoints in protecting intellectual property relating to invention as they do in protecting the intellectual property relating to the subject matter of copyright. The only limitation on the States is that in regulating the area of patents and copyrights they do not conflict with the operation of the laws in this area passed by Congress . . ..' 416 U.S., at 479, 94 S.Ct., at 1885.
Although recognizing that the trade-secret law resulted in preventing the public from gaining certain information, the Court emphasized that the law had 'a decidedly beneficial effect on society,' id., at 485, 94 S.Ct., at 1888, and that without it, 'organized scientific and technological research could become fragmented, and society, as a whole, would suffer.' Id., at 486, 94 S.Ct., at 1888.
1
Although the record is not explicit, it is unlikely that the 'act' commenced abruptly with the explosion that launched petitioner on his way, ending with the landing in the net a few seconds later. One may assume that the actual firing was preceded by some fanfare, possibly stretching over several minutes, to heighten the audience's anticipation: introduction of the performer, description of the uniqueness and danger, last-minute checking of the apparatus, and entry into the cannon, all accompanied by suitably ominous commentary from the master of ceremonies. If this is found to be the case on remand, then respondent could not be said to have appropriated the 'entire act' in its 15-second newsclip and the Court's opinion then would afford no guidance for resolution of the case. Moreover, in future cases involving different performances, similar difficulties in determining just what constitutes the 'entire act' are inevitable.
2
At some points the Court seems to acknowledge that the reason for recognizing a cause of action asserting a 'right of publicity' is to prevent unjust enrichment. See, e. g., ante, at 576. But the remainder of the opinion inconsistently accepts a measure of damages based not on the defendant's enhanced profits but on harm to the plaintiff regardless of any gain to the defendant. See, e. g., ante, at 575 n. 12. Indeed, in this case there is no suggestion that respondent television station gained financially by showing petitioner's flight (although it no doubt received its normal advertising revenue for the news program revenue it would have received no matter which news items appeared). Nevertheless, in the unlikely event that petitioner can prove that his income was somehow reduced as a result of the broadcast, respondent will apparently have to compensate him for the difference.
3
Such doubts are especially likely to arise when the editor receives film footage of an event at a local fair, a circus, a sports competition of limited duration (e. g., the winning effort in a ski-jump competition), or a dramatic production made up of short skits, to offer only a few examples.
4
This case requires no detailed specification of the standards for identifying a subterfuge, since there is no claim here that respondent's news use was anything but bona fide. Cf. 47 Ohio St.2d 224, 351 N.E.2d 454, 455 (the standards suggested by the Supreme Court of Ohio, quoted ante, at 565). I would point out, however, that selling time during a news broadcast to advertisers in the customary fashion does not make for 'commercial exploitation' in the sense intended here. See W. Prosser, Law of Torts 806-807 (4th ed. 1971). Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (1964).
*
Paragraph 3 of the court's syllabus, 47 Ohio St.2d 224, 351 N.E.2d 454, 455, reads as follows:
'A TV station has a privilege to report in its newscasts matters of legitimate public interest which would otherwise be protected by an individual's right of publicity, unless the actual intent of the TV station was to appropriate the benefit of the publicity for some non-privileged private use, or unless the actual intent was to injure the individual.'
In its opinion, the court described the 'proper standard' in language which I read as defining the boundaries of a common-law tort:
'The proper standard must necessarily be whether the matters reported were of public interest, and if so, the press will be liable for appropriation of a performer's right of publicity only if its actual intent was not to report the performance, but, rather, to appropriate the performance for some other private use, or if the actual intent was to injure the performer. It might also be the case that the press would be liable if it recklessly disregarded contract rights existing between the plaintiff and a third person to present the performance to the public, but that question is not presented here.' Id., at 235, 351 N.E.2d, at 461.
| 23
|
433 U.S. 425
97 S.Ct. 2777
53 L.Ed.2d 867
Richard M. NIXON, Appellant,v.ADMINISTRATOR OF GENERAL SERVICES et al.
No. 75-1605.
Argued April 20, 1977.
Decided June 28, 1977.
Syllabus
After appellant had resigned as President of the United States, he executed a depository agreement with the Administrator of General Services that provided for the storage near appellant's California home of Presidential materials (an estimated 42 million pages of documents and 880 tape recordings) accumulated during appellant's terms of office. Under this agreement, neither appellant nor the General Services Administration (GSA) could gain access to the materials without the other's consent. Appellant was not to withdraw any original writing for three years, although he could make and withdraw copies. After the initial three-year period he could withdraw any of the materials except tape recordings. With respect to the tape recordings, appellant agreed not to withdraw the originals for five years and to make reproductions only by mutual agreement. Following this five-year period the Administrator would destory such tapes as appellant directed, and all of the tapes were to be destroyed at appellant's death or after the expiration of 10 years, whichever occurred first. Shortly after the public announcement of this agreement, a bill was introduced in Congress designed to abrogate it, and about three months later this bill was enacted as the Presidential Recordings and Materials Preservation Act (Act) and was signed into law by President Ford. The Act directs the Administrator of GSA to take custody of appellant's Presidential materials and have them screened by Government archivists in order to return to appellant those personal and private in nature and to preserve those having historical value and to make the materials available for use in judicial proceedings subject to 'any rights, defenses or privileges which the Federal Government or any person may invoke.' The Administrator is also directed to promulgate regulations to govern eventual public access to some of the materials. These regulations must take into account seven guidelines specified by § 104(a) of the Act, including, inter alia, the need to protect any person's opportunity to assert any legally or constitutionally based right or privilege and the need to return to appellant or his family materials that are personal and private in nature. No such publicaccess regulations have yet become effective. The day after the Act was signed into law, appellant filed an action in District Court challenging the Act's constitutionality on the grounds, inter alia, that on its face it violates (1) the principle of separation of powers; (2) the Presidential privilege; (3) appellant's privacy interests; (4) his First Amendment associational rights; and (5) the Bill of Attainder Clause, and seeking declaratory and injunctive relief against enforcement of the Act. Concluding that since no public-access regulations had yet taken effect it could consider only the injury to appellant's constitutionally protected interests allegedly caused by the taking of the Presidential materials into custody and their screening by Government archivists, the District Court held that appellant's constitutional challenges were without merit and dismissed the complaint. Held:
1. The Act does not on its face violate the principle of separation of powers. Pp. 441-446.
(a) The Act's regulation of the Executive Branch's function in the control of the disposition of Presidential materials does not in itself violate such principle, since the Executive Branch became a party to the Act's regulation when President Ford signed the Act into law and President Carter's administration, acting through the Solicitor General, urged affirmance of the District Court's judgment. Moreover, the function remains in the Executive Branch in the person of the GSA Administrator and the Government archivists, employees of that branch. P. 441.
(b) The separate powers were not intended to operate with absolute independence, but in determining whether the Act violates the separation-of-powers principle the proper inquiry requires analysis of the extent to which the Act prevents the Executive Branch from accomplishing its constitutionally assigned functions, and only where the potential for disruption is present must it then be determined whether that impact is justified by an overriding need to promote objectives within Congress' constitutional authority. Pp. 441-443.
(c) There is nothing in the Act rendering it unduly disruptive of the Executive Branch, since that branch remains in full control of the Presidential materials, the Act being facially designed to ensure that the materials can be released only when release is not barred by privileges inhering in that branch. Pp. 443-446.
2. Neither does the Act on its face violate the Presidential privilege of confidentiality. Pp. 446-455.
(a) In view of the specific directions to the GSA Administrator in § 104(a) of the Act to take into account, in determining public access to the materials, 'the need to protect any party's opportunity to assert any constitutionally based right or privilege,' and the need to return to appellant his purely private materials, there is no reason to believe that the restrictions on public access ultimately established by regulation will not be adequate to preserve executive confidentiality. Pp. 449-451.
(b) The mere screening of the materials by Government archivists, who have previously performed the identical task for other former Presidents without any suggestion that such activity in any way interfered with executive confidentiality, will not impermissibly interfere with candid communication of views by Presidential advisers and will be no more of an intrusion into Presidential confidentiality than the in camera inspection by the District Court approved in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039. Pp. 451-452.
(c) Given the safeguards built into the Act to prevent disclosure of materials that implicate Presidential confidentiality, the requirement that appellant's personal and private materials be returned to him, and the minimal nature of the intrusion into the confidentiality of the Presidency resulting from the archivists' viewing such materials in the course of their screening process, the claims of Presidential privilege must yield to the important congressional purposes of preserving appellant's Presidential materials and maintaining access to them for lawful governmental and historical purposes. Pp. 452-454.
3. The Act does not unconstitutionally invade appellant's right of privacy. While he has a legitimate expectation of privacy in his personal communications, the constitutionality of the Act must be viewed in the context of the limited intrusion of the screening process, of appellant's status as a public figure, his lack of expectation of privacy in the overwhelming majority of the materials (he having conceded that he saw no more than 200,000 items), and the virtual impossibility of segregating the apparently small quantity of private materials without comprehensive screening. When this is combined with the Act's sensitivity to appellant's legitimate privacy interests, the unblemished record of the archivists for discretion, and the likelihood that the public-access regulations to be promulgated will further moot appellant's fears that his materials will be reviewed by 'a host of persons,' it is apparent that appellant's privacy claim has no merit. Pp. 455-465.
4. The Act does not significantly interfere with or chill appellant's First Amendment associational rights. His First Amendment claim is clearly outweighed by the compelling governmental interests promoted by the Act in preserving the materials. Since archival screening is the least restrictive means of identifying the materials to be returned to appellant, the burden of that screening is the measure of the First Amendment claim, and any such burden is speculative in light of the Act's provisions protecting appellant from improper public disclosures and guaranteeing him full judicial review before any public access is permitted. Pp. 465-468.
5. The Act does not violate the Bill of Attainder Clause. Pp. 468-484.
(a) However expansive is the prohibition against bills of attainder, it was not intended to serve as a variant of the Equal Protection Clause, invalidating every Act. by Congress or the States that burdens some persons or groups but not all other plausible individuals. While the Bill of Attainder Clause serves as an important bulwark against tyranny, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all. Pp. 468-471.
(b) The Act's specificity in referring to appellant by name does not automatically offend the Bill of Attainder Clause. Since at the time of the Act's passage Congress was only concerned with the preservation of appellant's materials, the papers of former Presidents already being housed in libraries, appellant constituted a legitimate class of one, and this alone can justify Congress' decision to proceed with dispatch with respect to his materials while accepting the status of his predecessors' papers and ordering in the Public Documents Act the further consideration of generalized standards to govern his successors. Pp. 471-472.
(c) Congress, by lodging appellant's materials in the GSA's custody pending their screening by Government archivists and the promulgation of further regulations, did not 'inflict punishment' within the historical meaning of bills of attainder. Pp. 473-475.
(d) Evaluated in terms of Congress' asserted proper purposes of the Act to preserve the availability of judicial evidence and historically relevant materials, the Act is one of nonpunitive legislative policymaking, and there is no evidence in the legislative history or in the provisions of the Act showing a congressional intent to punish appellant. Pp. 475-484.
D.C., 408 F.Supp. 321, affirmed.
Herbert J. Miller, Jr., and Nathan Lewin, Washington, D.C., for appellant.
Sol. Gen. Wade H. McCree, Jr., Detroit, Mich., and Robert E. Herzstein, Washington, D.C., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Title I of Pub.L. 93-526, 88 Stat. 1695, note following 44 U.S.C. § 2107 (1970 ed., Supp. V), the Presidential Recordings and Materials Preservation Act (hereafter Act), directs the Administrator of General Services, official of the Executive Branch, to take custody of the Presidential papers and tape recordings of appellant, former President Richard M. Nixon, and promulgate regulations that (1) provide for the orderly processing and screening by Executive Branch archivists of such materials for the purpose of returning to appellant those that are personal and private in nature, and (2) determine the terms and conditions upon which public access may eventually be had to those materials that are retained. The question for decision is whether Title I is unconstitutional on its face as a violation of (1) the separation of powers; (2) Presidential privilege doctrines; (3) appellant's privacy interests; (4) appellant's First Amendment associational rights; or (5) the Bill of Attainder Clause.
2
On December 19, 1974, four months after appellant resigned as President of the United States, his successor, President Gerald R. Ford, signed Pub.L. 93-526 into law. The next day, December 20, 1974, appellant filed this action in the District Court for the District of Columbia, which under § 105(a) of the Act has exclusive jurisdiction to entertain complaints challenging the Act's legal or constitutional validity, or that of any regulation promulgated by the Administrator. Appellant's complaint challenged the Act's constitutionality on a number of grounds and sought declaratory and injunctive relief against its enforcement. A three-judge District Court was convened pursuant to 28 U.S.C. §§ 2282, 2284.1 Because regulations required by § 104 of the Act governing public access to the materials were not yet effective, the District Court held that questions going to the possibility of future public release under regulations yet to be published were not ripe for review. It found that there was 'no need and no justification for this court now to reach constitutional claims directed at the regulations . . . the promulgation of (which) might eliminate, limit, or cast (the constitutional claims) in a different light.' 408 F.Supp. 321, 336 (1976). Accordingly, the District Court limited review 'to consideration of the propriety of injunctive relief against the alleged facial unconstitutionality of the statute,' id., at 335, and held that the challenges to the facial constitutionality of the Act were without merit. It therefore dismissed the complaint. Id., at 374-375. We noted probable jurisdiction, 429 U.S. 976, 97 S.Ct. 483, 50 L.Ed.2d 583 (1976). We affirm.
3
* The Background
4
The materials at issue consist of some 42 million pages of documents and some 880 tape recordings of conversations. Upon his resignation, appellant directed Government archivists to pack and ship the materials to him in California. This shipment was delayed when the Watergate Special Prosecutor advised President Ford of his continuing need for the materials. At the same time, President Ford requested that the Attorney General give his opinion respecting ownership of the materials. The Attorney General advised that the historical practice of former Presidents and the absence of any governing statute to the contrary supported ownership in the appellant, with a possible limited exception.2 43 Op.Atty. Gen. No. 1 (1974), App. 220-230. The Attorney General's opinion emphasized, however:
5
'Historically, there has been consistent acknowledgement that Presidential materials are peculiarly affected by a public interest which may justify subjecting the absolute ownership rights of the ex-President to certain limitations directly related to the character of the documents as records of government activity.' Id., at 226.
6
On September 8, 1974, after issuance of the Attorney General's opinion, the Administrator of General Services, Arthur F. Sampson, announced that he had signed a depository agreement with appellant under the authority of 44 U.S.C. § 2107. 10 Weekly Comp. of Pres.Doc. 1104 (1974). We shall also refer to the agreement as the Nixon-Sampson agreement. See Nixon v. Sampson, 389 F.Supp. 107, 160-162 (DC 1975) (App. A). The agreement recited that appellant retained 'all legal and equitable title to the Materials, including all literary property rights,' and that the materials accordingly were to be 'deposited temporarily' near appellant's California home in an 'existing facility belonging to the United States.' Id., at 160. The agreement stated further that appellant's purpose was 'to donate' the materials to the United States 'with appropriate restrictions.' Ibid. It was provided that all of the materials 'shall be placed within secure storage areas to which access can be gained only by use of two keys,' one in appellant's possession and the other in the possession of the Archivist of the United States or members of his staff. With exceptions not material here, appellant agreed 'not to withdraw from deposit any originals of the materials' for a period of three years, but reserved the right to 'make reproductions' and to authorize other persons to have access on conditions prescribed by him. After three years, appellant might exercise the 'right to withdraw from deposit without formality any or all of the Materials . . . and to retain . . . (them) for any purpose . . .' determined by him. Id., at 161.
7
The Nixon-Sampson agreement treated the tape recordings separately. They were donated to the United States 'effective September 1, 1979,' and meanwhile 'shall remain on depost.' It was provided however that '(s)ubsequent to September 1, 1979 the Administrator shall destory such tapes as (Mr. Nixon) may direct' and in any event the tapes 'shall be destroyed at the time of (his) death or on September 1, 1984, whichever event shall first occur.' Ibid. Otherwise the tapes were not to be withdrawn, and reproduction would be made only by 'mutual agreement.' Id., at 162. Access until September 1, 1979, was expressly reserved to appellant, except as he might authorize access by others on terms prescribed by him.
8
Public announcement of the agreement was followed 10 day later, September 18, by the introduction of S. 4016 by 13 Senators in the United States Senate. The bill, which became Pub.L. 93-526 and was designed, inter alia, to abrogate the Nixon-Sampson agreement, passed the Senate on October 4, 1974. It was awaiting action in the House of Representatives when on October 17, 1974, appellant filed suit in the District Court seeking specific enforcement of the Nixon-Sampson agreement. That action was consolidated with other suits seeking access to Presidential materials pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (1970 ed. and Supp. V), and also seeking injunctive relief against enforcement of the agreement. Nixon v. Sampson, supra.3 The House passed its version of the Senate bill on December 3, 1974. The final version of S. 4016 was passed on December 9, 1974, and President Ford signed it into law on December 19.
II
The Act
9
Public Law 93-526 has two Titles. Title I, the challenged Presidential Recordings and Materials Preservation Act, consists of §§ 101 through 106. Title II, the Public Documents Act, amends Chapter 33 of Title 44, United States Code, to add §§ 3315 through 3324 thereto, and establish the National Study Commission on Records and Documents of Federal Officials.
10
Section 101(a) of Title I directs that the Administrator of General Services, notwithstanding any other law or agreement or understanding (e. g., the Nixon-Sampson agreement), 'shall receive, obtain, or retain, complete possession and control of all original tape recordings of conversations which were recorded or caused to be recorded by any officer or employee of the Federal Government and which
11
'(1) involve former President Richard M. Nixon or other individuals who, at the time of the conversation, were employed by the Federal Government; '(2) were recorded in the White House or in the office of the President in the Executive Office Buildings located in Washington, District of Columbia; Camp David, Maryland; Key Biscayne, Florida; or San Clemente, California; and
12
'(3) were recorded during the period beginning January 20, 1969, and ending August 9, 1974.'
13
Section 101(b) provides that notwithstanding any such agreement or understanding, the Administrator also 'shall receive, retain, or make reasonable efforts to obtain, complete possession and control of all papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials (as defined by 44 U.S.C. § 210) of Richard M. Nixon, covering the period beginning January 20, 1969, and ending August 9, 1974.'
14
Section 102(a) prohibits destruction of the tapes or materials except as may be provided by law, and § 102(b) makes them available (giving priority of access to the Office of the Watergate Special Prosecutor) in response to court subpoena or other legal process, or for use in judicial proceedings. This was made subject, however, 'to any rights, defenses, or privileges which the Federal Government or any person may invoke . . ..' Section 102(c) affords appellant, or any person designated by him in writing, access to the recordings and materials for any purpose consistent with the Act 'subsequent and subject to the regulations' issued by the Administrator under § 103. See n. 46, infra. Section 102(d) provides for access according to § 103 regulations by any agency or department in the Executive Branch for lawful Government use. Section 103 requires custody of the tape recordings and materials to be maintained in Washington except as may otherwise be necessary to carry out the Act, and directs that the Administrator promulgate regulations necessary to assure their protection from loss or destruction and to prevent access to them by unauthorized persons.
15
Section 104, in pertinent part, directs the Administrator to promulgate regulations governing public access to the tape recordings and materials. Section 104(a) requires submission of proposed regulations to each House of Congress, the regulations to take effect under § 104(b)(1) at the end of 90 legislative days unless either the House or the Senate adopts a resolution disapproving them. The regulations must take into account seven factors specified in § 104(a), namely:
16
'(1) the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term 'Watergate';
17
'(2) the need to make such recordings and materials available for use in judicial proceedings;
18
'(3) the need to prevent general access, except in accordance with appropriate procedures established for use in judicial proceedings to information relating to the Nation's security;
19
'(4) the need to protect every individual's right to a fair and impartial trial;
20
'(5) the need to protect any party's opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials;
21
'(6) the need to provide public access to those materials which have general historical significance, and which are not likely to be related to the need described in paragraph (1); and
22
'(7) the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need described in paragraph (1) and are not otherwise of general historical significance.'
23
Section 105(a) vests the District Court for the District of Columbia with exclusive jurisdiction not only to hear constitutional challenges to the Act, but also to hear challenges to the validity of any regulation, and to decide actions involving questions of title, ownership, custody, possession, or control of any tape or materials, or involving payment of any award of just compensation required by § 105(c) when a decision of that court holds that any individual has been deprived by the Act of private property without just compensation. Section 105(b) is a severability provision providing that any decision invalidating a provision of the Act or a regulation shall not affect the validity or enforcement of any other provision or regulation. Section 106 authorizes appropriation of such sums as may be necessary to carry out the provisions of the Title.
III
The Scope of the Inquiry
24
The District Court correctly focused on the Act's requirement that the Administrator of General Services administer the tape recordings and materials placed in his custody only under regulations promulgated by him providing for the orderly processing of such materials for the purpose of returning to appellant such of them as are personal and private in nature, and of determining the terms and conditions upon which public access may eventually be had to those remaining in the Government's possession. The District Court also noted that in designing the regulations, the Administrator must consider the need to protect the constitutional rights of appellant and other individuals against infringement by the processing itself or, ultimately, by public access to the materials retained. 408 F.Supp., at 334-340. This construction is plainly required by the wording of §§ 103 and 104.4
25
Regulations implementing §§ 102 and 103, which did not require submission to Congress, and which regulate access and screening by Government archivists, have been promulgated, 41 CFR § 105-63 (1976). Public-access regulations that must be submitted to Congress under § 104(a) have not, however, become effective. The initial set proposed by the Administrator was disapproved pursuant to § 104(b)(1) by Senate Resolution. S.Res. 244, 94th Cong., 1st Sess. (1975); 121 Cong.Rec. 28609-28614 (1975). The Senate also disapproved seven provisions of a proposed second set, although that set had been withdrawn. S.Res. 428, 94th Cong., 2d Sess. (1976); 122 Cong.Rec. 10159-10160 (1976). The House disapproved six provisions of a third set. H.R.Res. 1505, 94th Cong., 2d Sess. (1976). The Administrator is of the view that regulations cannot become effective except as a package and consequently is preparing a fourth set for submission to Congress. Brief for Federal Appellees 8-9, n. 4.
26
The District Court therefore concluded that as no regulations under § 104 had yet taken effect, and as such regulations once effective were explicitly made subject to judicial review under § 105, the court could consider only the injury to appellant's constitutionally protected interests allegedly worked by the taking of his Presidential materials into custody for screening by Government archivists. 408 F.Supp., at 339-340. Judge McGowan, writing for the District Court, quoted the following from Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941):
27
'No one can foresee the varying applications of these separate provisions which conceivably might be made. A law which is constitutional as applied in one manner may still contravene the Constitution as applied in another. Since all contingencies of attempted enforcement cannot be envisioned in advance of those applications, courts have in the main found it wiser to delay passing upon the constitutionality of all the separate phases of a comprehensive statute until faced with cases involving particular provisions as specifically applied to persons who claim to be injured. Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is analogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case.' 408 F.Supp., at 336.
28
Only this Term we applied this principle in an analogous situation in declining to adjudicate the constitutionality of regulations of the Administrator of the Environmental Protection Agency that were in process of revision, stating: 'For (the Court) to review regulations not yet promulgated, the final form of which has been only hinted at, would be wholly novel.' EPA v. Brown, 431 U.S. 99, 104, 97 S.Ct. 1635, 1637, 52 L.Ed.2d 166 (1977). See also Thorpe v. Housing Authority, 393 U.S. 268, 283-284, 89 S.Ct. 518, 526-527, 21 L.Ed.2d 474 (1969); Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 1806, 10 L.Ed.2d 1000 (1963); United States v. Raines, 362 U.S. 17, 20-22, 80 S.Ct. 519, 522-523, 4 L.Ed.2d 524 (1960); Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958). We too, therefore, limit our consideration of the merits of appellant's several constitutional claims to those addressing the facial validity of the provisions of the Act requiring the Administrator to take the recordings and materials into the Government's custody subject to screening by Government archivists.
29
The constitutional questions to be decided are, of course, of considerable importance. They touch the relationship between two of the three coordinate branches of the Federal Government, the Executive and the Legislative, and the relationship of appellant to his Government. They arise in a context unique in the history of the Presidency and present issues that this Court has had no occasion heretofore to address. Judge McGowan, speaking for the District Court, comprehensively canvassed all the claims, and in a thorough opinion, concluded that none had merit. Our independent examination of the issues brings us to the same conclusion, although our analysis differs somewhat on some questions.
IV
30
Claims Concerning the Autonomy of the Executive Branch
31
The Act was the product of joint action by the Congress and President Ford, who signed the bill into law. It is therefore urged by intervenor-appellees that, in this circumstance, the case does not truly present a controversy concerning the separation of powers, or a controversy concerning the Presidential privilege of confidentiality, because, it is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. We reject the argument that only an incumbent President may assert such claims and hold that appellant, as a former President, may also be heard to assert them. We further hold, however, that neither has separation-of-powers claim nor his claim of breach of constitutional privilege has merit.
32
Appellant argues broadly that the Act encroaches upon the Presidential prerogative to control internal operations of the Presidential office and therefore offends the autonomy of the Executive Branch. The argument is divided into separate but interrelated parts.
33
First, appellant contends that Congress is without power to delegate to a subordinate officer of the Executive Branch the decision whether to disclose Presidential materials and to prescribe the terms that govern any disclosure. To do so, appellant contends, constitutes, without more, an impermissible interference by the Legislative Branch into matters inherently the business solely of the Executive Branch.
34
Second, appellant contends, somewhat more narrowly, that by authorizing the Administrator to take custody of all Presidential materials in a 'broad, undifferentiated' manner, and authorizing future publication except where a privilege is affirmatively established, the Act offends the presumptive confidentiality of Presidential communications recognized in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). He argues that the District Court erred in two respects in rejecting this contention. Initially, he contends that the District Court erred in distinguishing incumbent from former Presidents in evaluating appellant's claim of confidentiality. Appellant asserts that, unlike the very specific privilege protecting against disclosure of state secrets and sensitive information concerning military or diplomatic matters, which appellant concedes may be asserted only by an incumbent President, a more generalized Presidential privilege survives the termination of the President-adviser relationship much as the attorneyclient privilege survives the relationship that creates it. Appellant further argues that the District Court erred in applying a balancing test to his claim of Presidential privilege and in concluding that, notwithstanding the fact that some of the materials might legitimately be included within a claim of Presidential confidentiality, substantial public interests outweighed and justified the limited inroads on Presidential confidentiality necessitated by the Act's provision for Government custody and screening of the materials. Finally, appellant contends that the Act's authorization of the process of screening the materials itself violates the privilege and will chill the future exercise of constitutionally protected executive functions, thereby impairing the ability of future Presidents to obtain the candid advice necessary to the conduct of their constitutionally imposed duties.
A.
Separation of Powers
35
We reject at the outset appellant's argument that the Act's regulation of the disposition of Presidential materials within the Executive Branch constitutes, without more, a violation of the principle of separation of powers. Neither President Ford nor President Carter supports this claim. The Executive Branch became a party to the Act's regulation when President Ford signed the Act into law, and the administration of President Carter, acting through the Solicitor General, vigorously supports affirmance of the District Court's judgment sustaining its constitutionality. Moreover, the control over the materials remains in the Executive Branch. The Administrator of General Services, who must promulgate and administer the regulations that are the keystone of the statutory scheme, is himself an official of the Executive Branch, appointed by the President. The career archivists appointed to do the initial screening for the purpose of selecting out and returning to appellant his private and personal papers similarly are Executive Branch employees.
36
Appellant's argument is in any event based on an interpretation of the separation-of-powers doctrine inconsistent with the origins of that doctrine, recent decisions of the Court, and the contemporary realities of our political system. True, it has been said that 'each of the three general departments of government (must remain) entirely free from the control or coercive influence, direct or indirect, of either of the others . . .,' Humphrey's Executor v. United States, 295 U.S. 602, 629, 55 S.Ct. 869, 874, 79 L.Ed. 1611 (1935), and that '(t)he sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there.' Id., at 630, 55 S.Ct., at 874. See also O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356 (1933); Springer v. Government of the Philippine Islands, 277 U.S. 189, 201, 48 S.Ct. 480, 482, 72 L.Ed. 845 (1928).
37
But the more pragmatic, flexible approach of Madison in the Federalists Papers and later of Mr. Justice Story5 was expressly affirmed by this Court only three years ago in United States v. Nixon, supra. There the same broad argument concerning the separation of powers was made by appellant in the context of opposition to a subpoena duces tecum of the Watergate Special Prosecutor for certain Presidential tapes and documents of value to a pending criminal investigation. Although acknowledging that each branch of the Government has the duty initially to interpret the Constitution for itself, and that its interpretation of its powers is due great respect from the other branches, 418 U.S., at 703, 94 S.Ct., at 3105, the Court squarely rejected the argument that the Constitution contemplates a complete division of authority between the three branches. Rather, the unanimous Court essentially embraced Mr. Justice Jackson's view, expressed in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952).
38
'In designing the structure of our Government and dividing and allocating the sovereign power among three coequal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.' 418 U.S., at 707, 94 S.Ct., at 3107 (emphasis supplied).
39
Like the District Court, we therefore find that appellant's argument rests upon an 'archaic view of the separation of powers as requiring three airtight departments of government,' 408 F.Supp., at 342.6 Rather, in determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions. United States v. Nixon, 418 U.S., at 711-712, 94 S.Ct., at 3109. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress. Ibid.
40
It is therefore highly relevant that the Act provides for custody of the materials in officials of the Executive Branch and that employees of that branch have access to the materials only 'for lawful Government use, subject to the (Administrator' s) regulations.' § 102(d); 41 CFR §§ 105-63.205, 105-63.206, and 105-63.302 (1976). For it is clearly less intrusive to place custody and screening of the materials within the Executive Branch itself than to have Congress or some outside agency perform the screening function. While the materials may also be made available for use in judicial proceedings, this provision is expressly qualified by any rights, defense, or privileges that any person may invoke including, of course, a valid claim of executive privilege. United States v. Nixon, supra. Similarly, although some of the materials may eventually be made available for public access, the Act expressly recognizes the need both 'to protect any party's opportunity to assert any legally or constitutionally based right or privilege,' § 104(a)(5), and to return purely private materials to appellant, § 104(a)(7). These provisions plainly guard against disclosures barred by any defenses or privileges available to appellant or the Executive Branch.7 And appellant himself concedes that the Act 'does not make the presidential materials available to the Congress except insofar as Congressmen are members of the public and entitled to access when the public has it.' Brief for Appellant 119. The Executive Branch remains in full control of the Presidential materials, and the Act facially is designed to ensure that the materials can be released only when release is not barred by some applicable privilege inherent in that branch.
41
Thus, whatever are the future possibilities for constitutional conflict in the promulgation of regulations respecting public access to particular documents, nothing contained in the Act renders it unduly disruptive of the Executive Branch and, therefore, unconstitutional on its face. And, of course, there is abundant statutory precedent for the regulation and mandatory disclosure of documents in the possession of the Executive Branch. See, e. g., the Freedom of Information Act, 5 U.S.C. § 552 (1970 ed. and Supp. V); the Privacy Act of 1974, 5 U.S.C. § 552(a) (1970 ed., Supp. V); the Government in the Sunshine Act, 5 U.S.C. § 552b (1976 ed.); the Federal Records Act, 44 U.S.C. § 2101 et seq.; and a variety of other statutes, e. g., 13 U.S.C. §§ 8-9 (census data); 26 U.S.C. § 6103 (tax returns). Such regulation of material generated in the Executive Branch has never been considered invalid as an invasion of its autonomy. Cf. Environmental Protection Agency v. Mink, 410 U.S. 73, 83, 93 S.Ct. 827, 834, 35 L.Ed.2d 119 (1973); FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975).8 Similar congressional power to regulate Executive Branch documents exists in this instance, a power that is augmented by the important interests that the Act seeks to attain. See infra, at 452-454.
B
Presidential Privilege
42
Having concluded that the separation-of-powers principle is not necessarily violated by the Administrator's taking custody of and screening appellant's papers, we next consider appellant's more narrowly defined claim that the Presidential privilege shields these records from archival scrutiny. We start with what was established in United States v. Nixon, supra that the privilege is a qualified one.9 Appellant had argued in that case that in camera inspection by the District Court of Presidential documents and materials subpoenaed by the Special Prosecutor would itself violate the privilege without regard to whether the documents were protected from public disclosure. The Court disagreed, stating that 'neither the doctrine of separation of powers, nor the need for confidentiality of highlevel communications, without more, can sustain an absolute, unqualified Presidential privilege . . ..'10 418 U.S., at 706, 94 S.Ct., at 3106. The Court recognized that the privilege of confidentiality of Presidential communications derives from the supremacy of the Executive Branch within its assigned area of constitutional responsibilities,11 but distinguished a President's 'broad, undifferentiated claim of public interest in the confidentiality of such (communications)' from the more particularized and less qualified privilege relating to the need 'to protect military, diplomatic, or sensitive national security secrets . . .' Ibid. The Court held that in the case of the general privilege of confidentiality of Presidential communications, its importance must be balanced against the inroads of the privilege upon the effective functioning of the Judicial Branch. This balance was struck against the claim of privilege in that case because the Court determined that the intrusion into the confidentiality of Presidential communications resulting from in camera inspection by the District Court, 'with all the protection that a district court will be obliged to provide,' would be minimal and therefore that the claim was outweighed by '(t)he impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch . . ..' Id., at 706-707, 94 S.Ct., at 3107.
43
Unlike United States v. Nixon, in which appellant asserted a claim of absolute Presidential privilege against inquiry by the coordinate Judicial Branch, this case initially involves appellant's assertion of a privilege against the very Executive Branch in whose name the privilege is invoked. The nonfederal appellees rely on this apparent anomaly to contend that only an incumbent President can assert the privilege of the Presidency. Acceptance of that proposition would, of course, end this inquiry. The contention draws on United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953), where it was said that the privilege 'belongs to the Government and must be asserted by it: it can neither be claimed nor waived by a private party.' The District Court believed that this statement was strong support for the contention, but found resolution of the issue unnecessary. 408 F.Supp., at 343-345. It sufficed, said the District Court, that the privilege, if available to a former President, was at least one that 'carries much less weight than a claim asserted by the incumbent himself.' Id., at 345.
44
It is true that only the incumbent is charged with performance of the executive duty under the Constitution. And an incumbent may be inhibited in disclosing confidences of a predecessor when he believes that the effect may be to discourage candid presentation of views by his contemporary advisers. Moreover, to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, see United States v. Nixon, 418 U.S., at 714, 94 S.Ct., at 3110; cf. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501-503, 95 S.Ct. 1813, 1820-1821, 44 L.Ed.2d 324 (1975); Dombrowski v. Eastland, 387 U.S. 82, 84-85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967) (per curiam), a former President is in less need of it than an incumbent. In addition, there are obvious political checks against an incumbent's abuse of the privilege.
45
Nevertheless, we think that the Solicitor General states the sounder view, and we adopt it:
46
'This Court held in United States v. Nixon . . . that the privilege is necessary to provide the confidentiality required for the President's conduct of office. Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure.' Brief for Federal Appellees 33.
47
At the same time, however, the fact that neither President Ford nor President Carter supports appellant's claim detracts from the weight of his contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch. This necessarily follows, for it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.
48
The appellant may legitimately assert the Presidential privilege, of course, only as to those materials whose contents fall within the scope of the privilege recognized in United States v. Nixon, supra. In that case the Court held that the privilege is limited to communications 'in performance of (a President's) responsibilities,' 418 U.S., at 711, 94 S.Ct., at 3109, 'of his office,' id., at 713, and made 'in the process of shaping policies and making decisions,' id., at 708, 94 S.Ct., at 3107. Of the estimated 42 million pages of documents and 880 tape recordings whose custody is at stake, the District Court concluded that the appellant's claim of Presidential privilege could apply at most to the 200,000 items with which the appellant was personally familiar.
49
The appellant bases his claim of Presidential privilege in this case on the assertion that the potential disclosure of communications given to the appellant in confidence would adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decisionmaking. We are called upon to adjudicate that claim, however, only with respect to the process by which the materials will be screened and catalogued by professional archivists. For any eventual public access will be governed by the guidelines of § 104, which direct the Administrator to take into account 'the need to protect any party's opportunity to assert any . . . constitutionally based right or privilege,' § 104(a)(5), and the need to return purely private materials to the appellant, § 104(a)(7).
50
In view of these specific directions, there is no reason to believe that the restriction on public access ultimately established by regulation will not be adequate to preserve executive confidentiality. An absolute barrier to all outside disclosure is not practically or constitutionally necessary. As the careful research by the District Court clearly demonstrates, there has never been an expectation that the confidences of the Executive Office are absolute and unyielding. All former Presidents from President Hoover to President Johnson have deposited their papers in Presidential libraries (an example appellant has said he intended to follow) for governmental preservation and eventual disclosure.12 The screening processes for sorting materials for lodgment in these libraries also involved comprehensive review by archivists, often involving materials upon which access restrictions ultimately have been imposed. 408 F.Supp., at 347. The expectation of the confidentiality of executive communications thus has always been limited and subject to erosion over time after an administration leaves office.
51
We are thus left with the bare claim that the mere screening of the materials by the archivists will impermissibly interfere with candid communication of views by Presidential advisers.13 We agree with the District Court that, thus framed, the question is readily resolved. The screening constitutes a very limited intrusion by personnel in the Executive Branch sensitive to executive concerns. These very personnel have performed the identical task in each of the Presidential libraries without any suggestion that such activity has in any way interfered with executive confidentiality. Indeed, in light of this consistent historical practice, past and present executive officials must be well aware of the possibility that, at some time in the future, their communications may be reviewed on a confidential basis by professional archivists. Appellant has suggested no reason why review under the instant Act, rather than the Presidential Libraries Act, is significantly more likely to impair confidentiality, nor has he called into question the District Court's finding that the archivists' 'record for discretion in handling confidential material is unblemished.' 408 F.Supp., at 347.
52
Moreover, adequate justifications are shown for this limited intrusion into executive confidentiality comparable to those held to justify in in camera inspection of the District Court sustained in United States v. Nixon, supra. Congress' purposes in enacting the Act are exhaustively treated in the opinion of the District Court. The legislative history of the Act clearly reveals that, among other purposes, Congress acted to establish regular procedures to deal with the perceived need to preserve the materials for legitimate historical and governmental purposes.14 An incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current decisions that define or channel current governmental obligations.15 Nor should the American people's ability to reconstruct and come to terms which their history be truncated by an analysis of Presidential privilege that focuses only on the needs of the present.16 Congress can legitimately act to rectify the hit-or-miss approach that has characterized past attempts to protect these substantial interests by entrusting the materials to expert handling by trusted and disinterested professionals.
53
Other substantial public interests that led Congress to seek to preserve appellant's materials were the desire to restore public confidence in our political processes by preserving the materials as a source for facilitating a full airing of the events leading to appellant's resignation, and Congress' need to understand how those political processes had in fact operated in order to guage the necessity for remedial legislation. Thus by preserving these materials, the Act may be thought to aid the legislative process and thus to be within the scope of Congress' broad investigative power, see, e. g., Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). And, of course, the Congress repeatedly referred to the importance of the materials to the Judiciary in the event that they shed light upon issues in civil or criminal litigation, a social interest that cannot be doubted. See United States v. Nixon, supra17
54
In light of these objectives, the scheme adopted by Congress for preservation of the appellant's Presidential materials cannot be said to be overbroad. It is true that among the voluminous materials to be screened by archivists are some materials that bear no relationship to any of these objectives (and whose prompt return to appellant is therefore mandated by § 104(a)(7)). But these materials are commingled with other materials whose preservation the Act requires, for the appellant, like his predecessors, made no systematic attempt to segregate official, personal, and private materials. 408 F.Supp., at 355. Even individual documents and tapes often intermingle communications relating to governmental duties, and of great interest to historians or future policymakers, with private and confidential communications. Ibid.
55
Thus, as in the Presidential libraries, the intermingled state of the materials requires the comprehensive review and classification contemplated by the Act if Congress' important objectives are to be furthered. In the course of that process, the archivists will be required to view the small fraction of the materials that implicate Presidential confidentiality, as well as personal and private materials to be returned to appellant. But given the safeguards built into the Act to prevent disclosure of such materials and the minimal nature of the intrusion into the confidentiality of the Presidency, we believe that the claims of Presidential privilege clearly must yield to the important congressional purposes of preserving the materials and maintaining access to them for lawful governmental and historical purposes.
56
In short, we conclude that the screening process contemplated by the Act will not constitute a more severe intrusion into Presidential confidentiality than the in camera inspection by the District Court approved in United States v. Nixon, 418 U.S., at 706, 94 S.Ct., at 3106. We must, of course, presume that the Administrator and the career archivists concerned will carry out the duties assigned to them by the Act. Thus, there is no basis for appellant's claim that the Act 'reverses' the presumption in favor of confidentiality of Presidential papers recognized in United States v. Nixon. Appellant's right to assert the privilege is specifically preserved by the Act. The guideline provisions on their face are as broad as the privilege itself. If the broadly written protections of the Act should nevertheless prove inadequate to safeguard appellant's rights or to prevent usurpation of executive powers, there will be time enough to consider that problem in a specific factual context. For the present, we hold, in agreement with the District Court, that the Act on its face does not violate the Presidential privilege.
V
Privacy
57
Appellant concedes that when he entered public life he voluntarily surrendered the privacy secured by law for those who elect not to place themselves in the public sportlight. See, e. g., New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). He argues, however, that he was not thereby stripped of all legal protection of his privacy, and contends that the Act violates fundamental rights of expression and privacy guaranteed to him by the First, Fourth, and Fifth Amendments.18
58
The District Court treated appellant's argument as addressed only to the process by which the screening of the materials will be performed. 'Since any claim by (appellant) that his privacy will be invaded by public access to private materials must be considered premature when it must actually be directed to the regulations once they become effective, we need not consider how the materials will be treated after they are reviewed.' 408 F.Supp., at 358. Although denominating the privacy claim '(t)he most troublesome challenge that plaintiff raises . . .,' id., at 357, the District Court concluded that the claim was without merit. The court reasoned that the proportion of the 42 million pages of documents and 880 tape recordings implicating appellant's privacy interests was quite small since the great bulk of the materials related to appellant's conduct of his duties as President, and were therefore materials to which great public interest attached. The touchstone of the legality of the archival processing, in the District Court's view, was its reasonableness. Balancing the public interest in preserving the materials touching appellant's performance of his official duties against the invasion of the appellant's privacy that archival screening necessarily entails, the District Court concluded that the Act was not unreasonable and hence not facially unconstitutional:
59
'Here, we have a processing scheme without which national interests of overriding importance cannot be served . . ..' Id., at 364.
60
Thus, the Act 'is a reasonable response to the difficult problem caused by the mingling of personal and private documents and conversations in the midst of a vastly greater number of nonprivate documents and materials related to government objectives. The processing contemplated by the Act at least as narrowed by carefully tailored regulations represents the least intrusive manner in which to provide an adequate level of promotion of government interests of overriding importance.' Id., at 367. We agree with the District Court that the Act does not unconstitutionally invade appellant's right of privacy.
61
One element of privacy has been characterized as 'the individual interest in avoiding disclosure of personal matters . . ..' Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). We may agree with appellant that, at least when Government intervention is at stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity. Presidents who have established Presidential libraries have usually withheld matters concerned with family or personal finances, or have deposited such materials with restrictions on their screening. 408 F.Supp., at 360.19 We may assume with the District Court, for the purposes of this case, that this pattern of de facto Presidential control and congressional acquiescence gives rise to appellant's legitimate expectation of privacy in such materials. Katz v. United States, 389 U.S. 347, 351-353, 88 S.Ct. 507, 511-512, 19 L.Ed.2d 576 (1967).20 This expectation is independent of the question of ownership of the materials, an issue we do not reach. See n. 8, supra. But the merit of appellant's claim of invasion of his privacy cannot be considered in the abstract; rather, the claim must be considered in light of the specific provisions of the Act, and any intrusion must be weighed against the public interest in subjecting the Presidential materials of appellant's administration to archival screening. Camara v. Municipal Court, 387 U.S. 523, 534-539, 87 S.Ct. 1727, 1733-1736, 18 L.Ed.2d 930 (1967); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).21 Under this test, the privacy interest asserted by appellant is weaker than that found wanting in the recent decision of Whalen v. Roe, supra. Emphasizing the precautions utilized by New York State to prevent the unwarranted disclosure of private medical information retained in a state computer bank system, Whalen rejected a constitutional objection to New York's program on privacy grounds. Not only does the Act challenged here mandate regulations similarly aimed at preventing undue dissemination of private materials but, unlike Whalen, the Government will not even retain long-term control over such private information; rather, purely private papers and recordings will be returned to appellant under § 104(a)(7) of the Act.
62
The overwhelming bulk of the 42 million pages of documents and the 880 tape recordings pertain, not to appellant's private communications, but to the official conduct of his Presidency. Most of the 42 million pages were prepared and seen by others and were widely circulated within the Government. Appellant concedes that he saw no more than 200,000 items, and we do not understand him to suggest that his privacy calam extends to items he never saw. See United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). Further, it is logical to assume that the tape recordings made in the Presidential offices primarily relate to the conduct and business of the Presidency. And, of course, appellant cannot assert any privacy claim as to the documents and tape recordings that he has already disclosed to the public. United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973); Katz v. United States, supra, 389 U.S., at 351, 88 S.Ct., at 511. Therefore, appellant's privacy claim embracing, for example, 'extremely private communications between him and, among others, his wife, his daughters, his physician, lawyer, and clergyman, and his close friends, as well as personal diary dictablets and his wife's personal files,' 408 F.Supp., at 359, relates only to a very small fraction of the massive volume of official materials with which they are presently commingled.22
63
The fact that appellant may assert his privacy claim as to only a small fraction of the materials of his Presidency is plainly relevant in judging the reasonableness of the screening process contemplated by the Act, but this of course does not, without more, require rejection of his privacy argument. Id., at 359. Although the Act requires that the regulations promulgated by the Administrator under § 104(a) take into account appellant's legally and constitutionally based rights and privileges, presumably including his privacy rights, § 104(a)(5), and also take into account the need to return to appellant his private materials, § 104(a)(7),23 the identity and separation of these purely private matters can be achieved, as all parties concede, only by screening all of the materials.
64
Appellant contends that the Act therefore is tantamount to a general warrant authorizing search and seizure of all of his Presidential 'papers and effects.' Such 'blanket authority,' appellant contends, is precisely the kind of abuse that the Fourth Amendment was intended to prevent, for "the real evil aimed at by the Fourth Amendment is the search itself, that invasion of a man's privacy which consists (in) rummaging about among his effects to secure evidence against him." Brief for Appellant 148, quoting United States v. Poller, 43 F.2d 911, 914 (C.A.2 1930). Thus, his brief continues, at 150-151:
65
'(Appellant's) most private thoughts and communications, both written and spoken, will be exposed to and reviewed by a host of persons whom he does not know and did not select, and in whom he has no reason to place his confidence. This group will decide what is personal, to be returned to (him), and what is historical, to be opened for public review.'24
66
Appellant principally relies on Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965), but that reliance is misplaced. Stanford invalidated a search aimed at obtaining evidence that an individual had violated a 'sweeping and many-faceted law which, among other things, outlaws the Communist Party and creates various individual criminal offenses, each punishable by imprisonment for up to 20 years.' Id., at 477, 85 S.Ct., at 507. The search warrant authorized a search of his private home for books, records, and other materials concerning illegal Communist activities. After spending more than four hours in Stanford's house, police officers seized half of his books which included works by Sartre, Marx, Pope John XXIII, Mr. Justice Hugo Black, Theodore Draper, and Earl Browder, as well as private documents including a marriage certificate, insurance policies, household bills and receipts, and personal correspondence. Id., at 479-480, 85 S.Ct., at 508-509. Stanford held this to be an unconstitutional general search.
67
The District Court concluded that the Act's provisions for custody and screening could not be analogized to a general search and that Stanford, therefore, did not require the Act's invalidation. 408 F.Supp., at 366-367, n. 63. We agree. Only a few documents among the vast quantity of materials seized in Stanford were even remotely related to any legitimate government interest. This case presents precisely the opposite situation: the vast proportion of appellant's Presidential materials are official documents or records in which appellant concedes the public has a recognized interest. Moreover, the Act provides procedures and orders the promulgation of regulations expressly for the purpose of minimizing the intrusion into appellant's private and personal materials. Finally, the search in Stanford was an intrusion into an individual's home to search and seize personal papers in furtherance of a criminal investigation and designed for exposure in a criminal trial. In contrast, any intrusion by archivists into appellant's private papers and effects is undertaken with the sole purpose of separating private materials to be returned to appellant from nonprivate materials to be retained and preserved by the Government as a record of appellant's Presidency.
68
Moreover, the screening will be undertaken by Government archivists with, as the District Court noted, 'an unblemished record for discretion,' 408 F.Supp., at 365. That review can hardly differ materially from that contemplated by appellant's intention to establish a Presidential library, for Presidents who have established such libraries have found that screening by professional archivists was essential. Although the District Court recognized that this contemplation of archival review would not defeat appellant's expectation of privacy, the court held that it does indicate that 'in the special situation of documents accumulated by a President during his tenure and reviewed by professional government personnel, pursuant to a process employed by past Presidents, any intrusion into privacy interests is less substantial than it might appear at first.' Ibid. (citation omitted).
69
The District Court analogized the screening process contemplated by the Act to electronic surveillance conducted pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. 408 F.Supp., at 363. We think the analogy is apt. There are obvious similarities between the two procedures. Both involve the problem of separating intermingled communications, (1) some of which are expected to be related to legitimate Government objectives, (2) some of which are not, and (3) for which there is no means to segregate the one from the other except by reviewing them all. Thus the screening process under the Act, like electronic surveillance, requires some intrusion into private communications unconnected with any legitimate governmental objectives. Yet this fact has not been thought to render surveillance under the Omnibus Act Unconstitutional. Cf., e. g., United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). See also 408 F.Supp., at 363-364.
70
Appellant argues that this analogy is inappropriate because the electronic surveillance procedure was carefully designed to meet the constitutional requirements enumerated in Berger v. New York, supra, including (1) prior judicial authorization, (2) specification of particular offenses said to justify the intrusion, (3) specification 'with particularity' of the conversations sought to be seized, (4) minimization of the duration of the wiretap, (5) termination once the conversation sought is seized, and (6) a showing of exigent circumstances justifying use of the wiretap procedure. Brief for Appellant 157. Although the parallel is far from perfect, we agree with the District Court that many considerations supporting the constitutionality of the Omnibus Act also argue for the constitutionality of this Act's materials screening process. For example, the Omnibus Act permits electronic surveillance only to investigate designated crimes that are serious in nature, 18 U.S.C. § 2516, and only when normal investigative techniques have failed or are likely to do so, § 2518(3)(c). Similarly, the archival review procedure involved here is designed to serve important national interests asserted by Congress, and the unavailability of less restrictive means necessarily follows from the commingling of the documents.25 Similarly, just as the Omnibus Act expressly requires that interception of nonrelevant communications be minimized, § 2518(5), the Act's screening process is designed to minimize any privacy intrusions, a goal that is further reinforced by regulations which must take those interests into account.26 The fact that apparently only a minute portion of the materials implicates appellant's privacy interests27 also negates any conclusion that the screening process is an unreasonable solution to the problem of separating commingled communications.
71
In sum, appellant has a legitimate expectation of privacy in his personal communications. But the constitutionality of the Act must be viewed in the context of the limited intrusion of the screening process, of appellant's status as a public figure, of his lack of any expectation of privacy in the overwhelming majority of the materials, of the important public interest in preservation of the materials, and of the virtual impossibility of segregating the small quantity of private materials without comprehensive screening. When this is combined with the Act's sensitivity to appellant's legitimate privacy interests, see § 104(a)(7), the unblemished record of the archivists for discretion, and the likelihood that the regulations to be promulgated by the Administrator will further moot appellant's fears that his materials will be reviewed by 'a host of persons,'28 Brief for Appellant 150, we are compelled to agree with the District Court that appellant's privacy claim is without merit.
VI
First Amendment
72
During his Presidency appellant served also as head of his national political party and spent a substantial portion of his working time on partisan political matters. Records arising from his political activities, like his private and personal records, are not segregated from the great mass of materials. He argues that the Act's archival screening process therefore necessarily entails invasion of his constitutionally protected rights of associational privacy and political speech. As summarized by the District Court: 'It is alleged that the Act invades the private formulation of political thought critical to free speech and association, imposing sanctions upon past expressive activity, and more significantly, limiting that of the future because individuals who learn the substance of certain private communications by (appellant) especially those critical of themselves will refuse to associate with him. The Act is furthermore said to chill (his) expression because he will be 'saddled' with prior positions communicated in private, leaving him unable to take inconsistent positions in the future.' 408 F.Supp., at 367-368.
73
The District Court, viewing these arguments as in essence a claim that disclosure of the materials violated appellant's associational privacy, and therefore as not significantly different in structure from appellant's privacy claim, again treated the arguments as limited to the constitutionality of the Act's screening process. Id., at 368. As was true with respect to the more general privacy challenge, only a fraction of the materials can be said to raise a First Amendment claim. Nevertheless, the District Court acknowledged that appellant would 'appear . . . to have a legitimate expectation that he would have an opportunity to remove some of the sensitive political documents before any government screening took place.' Ibid. The District Court concluded, however, that there was no reason to believe that the mandated regulations when promulgated would not adequately protect against public access to materials implicating appellant's privacy in political association, and that 'any burden arising solely from review by professional and discreet archivists is not significant.' The court therefore held that the Act does not significantly interfere with or chill appellant's First Amendment rights. Id., at 369. We agree with the District Court's conclusion.
74
It is, of course, true that involvement in partisan polities is closely protected by the First Amendment, Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed. 659 (1976), and that 'compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by First Amendment.' Id., at 64, 96 S.Ct., at 656. But a compelling public need that cannot be met in a less restrictive way will override those interests, Kusper v. Pontikes, 414 U.S. 51, 58-59, 94 S.Ct. 303, 308, 38 L.Ed.2d 260 (1973); United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672 (1968); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960), 'particularly when the 'free functioning of our national institutions' is involved.' Buckley v. Valeo, supra, 424 U.S., at 66, 96 S.Ct., at 657. Since no less restrictive way than archival screening has been suggested as a means for identification of materials to be returned to appellant, the burden of that screening is presently the measure of his First Amendment claim. Id., at 84, 96 S.Ct., at 665. The extent of any such burden, however, is speculative in light of the Act's terms protecting appellant from improper public disclosures and guaranteening him full judicial review before any public access is permitted. §§ 104(a)(5), 104(a)(7), 105(a).29 As the District Court concluded, the First Amendment claim is clearly outweighed by the important governmental interests promoted by the Act.
75
For the same reasons, we find no merit in appellant's argument that the Act's scheme for custody and archival screening of the materials 'necessarily inhibits (the) freedom of political activity (of future Presidents) and thereby reduces the 'quantity and diversity' of the political speech and association that the Nation will be receiving from its leaders.' Brief for Appellant 168. It is significant, moreover, that this concern has not deterred President Ford from signing the Act into law, or President Carter from urging this Court's affirmance of the judgment of the District Court.
VII
Bill of Attainder Clause
A.
76
Finally, we address appellant's argument that the Act constitutes a bill of attainder proscribed by Art. I, § 9, of the Constitution.30 His argument is that Congress acted on the premise that he had engaged in "misconduct," was an "unreliable custodian" of his own documents, and generally was deserving of a 'legislative judgment of blameworthiness,' Brief for Appellant 132-133. Thus, he argues, the Act is pervaded with the key features of a bill of attainder: a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial. See United States v. Brown, 381 U.S. 437, 445, 447, 85 S.Ct. 1707, 1713, 1714, 14 L.Ed.2d 484 (1965); United States v. Lovett, 328 U.S. 303, 315-316, 66 S.Ct. 1073, 1078-1079, 90 L.Ed. 1252 (1946); Ex parte Garland, 4 Wall. 333, 377, 18 L.Ed. 366 (1867); Cummings v. Missouri, 4 Wall. 277, 323, 18 L.Ed. 356 (1867).
77
Appellant's argument relies almost entirely upon United States v. Brown, supra, the Court's most recent decision addressing the scope of the Bill of Attainder Clause. It is instructive, therefore, to sketch the broad outline of that case. Brown invalidated § 504 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 504, that made it a crime for a Communist Party member to serve as an officer of a labor union. After detailing the infamous history of bills of attainder, the Court found that the Bill of Attainder Clause was an important ingredient of the doctrine of 'separation of powers,' one of the organizing principles of our system of government. 381 U.S., at 442-443, 85 S.Ct., at 1711-1712. Just as Art. III confines the Judiciary to the task of adjudicating concrete 'cases or controversies,' so too the Bill of Attainder Clause was found to 'reflect . . . the Framers' belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.' 381 U.S., at 445, 85 S.Ct., at 1713. Brown thus held that § 504 worked a bill of attainder by focusing upon easily identifiable members of a class members of the Communist Party and imposing on them the sanction of mandatory forfeiture of a job or office, long deemed to be punishment with the contemplation of the Bill of Attainder Clause. See, e. g., United States v. Lovett, supra, 328 U.S., at 316, 66 S.Ct. at 1079; Cummings v. Missouri, supra, 4 Wall., at 320.
78
Brown, Lovett, and earlier cases unquestionably gave broad and generous meaning to the constitutional protection against bills of attainder. But appellant's proposed reading is far broader still. In essence, he argues that Brown establishes that the Constitution is offended whenever a law imposes undesired consequences on an indvidual or on a class that is not defined at a proper level of generality. The Act in question therefore is faulted for singling out appellant, as opposed to all other Presidents or members of the Government, for disfavored treatment.
79
Appellant's characterization of the meaning of a bill of attainder obviously proves far too much. By arguing that an individual or defined group is attainted whenever he or it is compelled to bear burdens which the individual or group dislikes, appellant removes the anchor that ties the bill of attainder guarantee to realistic conceptions of classification and punishment. His view would cripple the very process of legislating, for any individual or group that is made the subject of adverse legislation can complain that the lawmakers could and should have defined the relevant affected class at a greater level of generality.31 Furthermore, every person or group made subject to legislation which he or it finds burdensome may subjectively feel, and can complain, that he or it is being subjected to unwarranted punishment. United States v. Lovett, supra, 328 U.S., at 324, 66 S.Ct., at 1083 (Frankfurther, J., concurring).32 However expansive the prohibition against bills of attainder, it surely was not intended to serve as a variant of the equal protection doctrine,33 invalidating every Act of Congress or the States that legislatively burdens some persons or groups but not all other plausible individuals.34 In short, while the Bill of Attainder Clause serves as an important 'bulwark against tyranny.' United States v. Brown, 381 U.S., at 443, 85 S.Ct., at 1712, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all.
80
Thus, in the present case, the Act's specificity the fact that it refers to appellant by name does not automatically offend the Bill of Attainder Clause. Indeed, viewed in context, the focus of the enactment can be fairly and rationally understood. It is true that Title I deals exclusively with appellant's papers. But Title II casts a wider net by establishing a special commission to study and recommend appropriate legislation regarding the preservation of the records of future Presidents and all other federal officials. In this light, Congress' action to preserve only appellant's records is easily explained by the fact that at the time of the Act's passage, only his materials demanded immediate attention. The Presidential papers of all former Presidents from Hoover to Johnson were already housed in functioning Presidential libraries. Congress had reason for concern solely with the preservation of appellant's materials, for he alone had entered into a depository agreement, the Nixon-Sampson agreement, which by its terms called for the destruction of certain of the materials. Indeed, as the federal appellees argue, 'appellant's depository agreement . . . created an imminent danger that the tape recordings would be destroyed if appellant, who had contracted phlebitis, were to die.' Brief for Federal Appellees 41. In short, appellant constituted a legitimate class of one, and this provides a basis for Congress' decision to proceed with dispatch with respect to his materials while accepting the status of his predecessors' papers and ordering the further consideration of generalized standards to govern his successors.
81
Moreover, even if the specificity element were deemed to be satisfied here, the Bill of Attainder Clause would not automatically be implicated. Forbidden legislative punishment is not involved merely because the Act imposes burdensome consequences. Rather, we must inquire further whether Congress, by lodging appellant's materials in the custody of the General Services Administration pending their screening by Government archivists and the promulgation of further regulations, 'inflict(ed) punishment' within the constitutional proscription against bills of attainder. United States v. Lovett, 328 U.S., at 315, 66 S.Ct., at 1078; see also United States v. Brown, supra, 381 U.S., at 456-460, 85 S.Ct., at 1718-1721; Cummings v. Missouri, 4 Wall., at 320.
B
82
* The infamous history of bills of attainder is a useful starting point in the inquiry whether the Act fairly can be characterized as a form of punishment leveled against appellant. For the substantial experience of both England and the United States with such abuses of parliamentary and legislative power offers a ready checklist of deprivations and disabilities so disproportionately severe and so inappropriate to nonpunitive ends that they unquestionably have been held to fall within the proscription of Art. I, § 9. A statutory enactment that imposes any of those sanctions on named or identifiable individuals would be immediately constitutionally suspect.
83
In England a bill of attainder originally connoted a parliamentary Act sentencing a named individual or identifiable members of a group to death.35 Article I, § 9, however, also proscribes enactments originally characterized as bills of pains and penalties, that is, legislative Acts inflicting punishment other than execution. United States v. Lovett, supra, 328 U.S., at 323-324, 66 S.Ct., at 1082-1083 (Frankfurter, J., concurring); Cummings v. Missouri, supra, 4 Wall. at 323; Z. Chafee, Jr., Three Human Rights in the Constitution of 1787, p. 97 (1956). Generally addressed to persons considered disloyal to the Crown or State, 'pains and penalties' historically consisted of a wide array of punishments: commonly included were imprisonment,36 banishment,37 and the punitive confiscation of property by the sovereign.38 Our country's own experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments: a legislative enactment barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively branded as disloyal. See, e. g., Cummings v. Missouri, supra (barring clergymen from ministry in the absence of subscribing to a loyalty oath); United States v. Lovett, supra (barring named individuals from Government employment); United States v. Brown, supra (barring Communist Party members from offices in labor unions).
84
Needless to say, appellant cannot claim to have suffered any of these forbidden deprivations at the hands of the Congress. While it is true that Congress ordered the General Services Administration to retain control over records that appellant claims as his property,39 § 105 of the Act makes provision for an award by the District Court of 'just compensation.' This undercuts even a colorable contention that the Government has punitively confiscated appellant's property, for the 'owner (thereby) is to be put in the same position monetarily as he would have occupied if his property has not been taken.' United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12 (1970); accord, United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279, 87 L.Ed. 336 (1943). Thus, no feature of the challenged Act falls within the historical meaning of legislative punishment.
2
85
But our inquiry is not ended by the determination that the Act imposes no punishment traditionally judged to be prohibited by the Bill of Attainder Clause. Our treatment of the scope of the Clause has never precluded the possibility that new burdens and deprivations might be legislatively fashioned that are inconsistent with the bill of attainder guarantee. The Court, therefore, often has looked beyond mere historical experience and has applied a functional test of the existence of punishment, analyzing whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.40 Cummings v. Missouri, 4 Wall., at 319-320; Hawker v. New York, 170 U.S. 189, 193-194, 18 S.Ct. 573, 575, 42 L.Ed. 1002 (1898); Dent v. West Virginia, 129 U.S. 114, 128, 9 S.Ct. 231, 235, 32 L.Ed. 623 (1889); Trop v. Dulles, 356 U.S. 86, 96-97, 78 S.Ct. 590, 595-596, 2 L.Ed.2d 630 (1958) (plurality opinion); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963). Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers.
86
Application of the functional approach to this case leads to rejection of appellant's argument that the Act rests upon a congressional determination of his blameworthiness and a desire to punish him. For, as noted previously, see supra, at 452-454, legitimate justifications for passage of the Act are readily apparent. First, in the face of the Nixon-Sampson agreement which expressly contemplated the destruction of some of appellant's materials, Congress stressed the need to preserve '(i)nformation included in the materials of former President Nixon (that) is needed to complete the prosecutions of Watergate-related crimes.' H.R.Rep. No. 93-1507, p. 2 (1974). Second, again referring to the Nixon-Sampson agreement, Congress expressed its desire to safeguard the 'public interest in gaining appropriate access to materials of the Nixon Presidency which are of general historical significance. The information in these materials will be of great value to the political health and vitality of the United States.' Ibid.41 Indeed, these same objectives are stated in the text of the Act itself, § 104(a), note following 44 U.S.C. § 2107 (1970 ed., Supp. V), where Congress instructs the General Services Administration to promulgate regulations that further these ends and at the same time protect the constitutional and legal rights of any individual adversely affected by the Administrator's retention of appellant's materials.
87
Evaluated in terms of these asserted purposes, the law plainly must be held to be an act of nonpunitive legislative policymaking. Legislation designed to guarantee the availability of evidence for use at criminal trials is a fair exercise of Congress' responsibility to the 'due process of law in the fair administration of criminal justice,' United States v. Nixon, 418 U.S., at 713, 94 S.Ct., at 3110, and to the functioning of our adversary legal system which depends upon the availability of relevant evidence in carrying out its commitments both to fair play and to the discovery of truth within the bounds set by law. Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972); Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 76 L.Ed. 375 (1932); Blair v. United States, 250 U.S. 273, 281, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). Similarly, Congress' interest in and expansive authority to act in preservation of monuments and records of historical value to our national heritage are fully established. United States v. Gettysburg Electric R. Co., 160 U.S. 16 S.Ct. 427, 40 L.Ed. 576 (1896); Roe v. Kansas, 278 U.S. 191, 49 S.Ct. 160, 73 L.Ed. 259 (1929).42 A legislature thus acts responsibly in seeking to accomplish either of these objectives. Neither supports an implication of a legislative policy designed to inflict punishment on an individual.
3
88
A third recognized test of punishment is strictly a motivational one: inquiring whether the legislative record evinces a congressional intent to punish. See, e. g., United States v. Lovett, 328 U.S., at 308-314, 314, 66 S.Ct., at 1075-1078; Kennedy v. Mendoza-Martinez, supra, 372 U.S., at 169-170, 83 S.Ct., at 568. The District Court unequivocally found: 'There is no evidence presented to us, nor is there any to be found in the legislative record, to indicate that Congress' design was to impose a penalty upon Mr. Nixon . . . as punishment for alleged past wrongdoings. . . . The legislative history leads to only one conclusion, namely, that the Act before us is regulatory and not punitive in character.' 408 F.Supp., at 373 (emphasis omitted). We find no cogent reason for disagreeing with this conclusion.
89
First, both Senate and House Committee Reports, in formally explaining their reasons for urging passage of the Act, expressed no interest in punishing or penalizing appellant. Rather, the Reports justified the Act by reference to objectives that fairly and properly lie within Congress' legislative competence: preserving the availability of judicial evidence and of historically relevant materials. Supra, at 476-478. More specifically, it seems clear that the actions of both Houses of Congress were predominantly precipitated by a resolve to undo the recently negotiated Nixon-Sampson agreement, the terms of which departed from the practice of former Presidents in that they expressly contemplated the destruction of certain Presidential materials.43 Along these lines, H.R.Rep. No. 93-1507, supra, at 2, stated: 'Despite the overriding public interest in preserving these materials . . . (the) Administrator of General Services entered into an agreement . . . which, if implemented, could seriously limit access to these records and . . . result in the destruction of a substantial portion of them.' See also S.Rep. No. 93-1181, p. 4 (1974). The relevant Committee Reports thus cast no aspersions on appellant's personal conduct and contain no condemnation of his behavior as meriting the infliction of punishment. Rather, they focus almost exclusively on the meaning and effect of an agreement recently announced by the General Services Administration which most Members of Congress perceived to be inconsistent with the public interest.
90
Nor do the floor debates on the measure suggest that Congress was intent on encroaching on the judicial function of punishing an individual for blameworthy offenses. When one of the opponents of the legislation, mischaracterizing the safeguards embodied in the bill,44 stated that it is 'one which partakes of the characteristics of a bill of attainder . . .,' 120 Cong.Rec. 33872 (1974) (Sen.Hruska), a key sponsor of the measure responded by expressly denying any intention of determining appellant's blameworthiness or imposing punitive sanctions:
91
'This bill does not contain a word to the effect that Mr. Nixon is guilty of any violation of the law. It does not inflict any punishment on him. So it has no more relation to a bill of attainder . . . than my style of pulchritude is to be compared to that of the Queen of Sheba.' Id., at 33959-33960 (Sen. Ervin).
92
In this respect, the Act stands in marked contrast to that invalidated in United States v. Lovett, 328 U.S., at 312, 66 S.Ct., at 1077, where a House Report expressly characterized individuals as 'subversive . . . and . . . unfit . . . to continue in Government employment.' H.R.Rep. No. 448, 78th Cong., 1st Sess., 6 (1943). We, of course, do not suggest that such a formal legislative announcement of moral blameworthiness or punishment is necessary to an unlawful bill of attainder. United States v. Lovett, supra, at 316, 66 S.Ct. at 1079. But the decided absence from the legislative history of any congressional sentiments expressive of this purpose is probative of nonpunitive intentions and largely undercuts a major concern that prompted the bill of attainder prohibition: the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge or, worse still, lynch mob. Cf. Z. Chafee, supra, at 161.45 No such legislative overeaching is involved here.
93
We also agree with the District Court that 'specific aspects of the Act . . . just do not square with the claim that the Act was a punitive measure.' 408 F.Supp., at 373. Whereas appellant complains that the Act has for some two years deprived him of control over the materials in question, Brief for Appellant 140, the Congress placed the materials under the auspices of the General Services Administration, § 101, note following 44 U.S.C. § 2107 (1970 ed., Supp. V), the same agency designated in the Nixon-Sampson agreement as depository of the documents for a minimum three-year period, App. 40. Whereas appellant complains that the Act deprives him of 'ready access' to the materials, Brief for Appellant 140, the Act provides that 'Richard M. Nixon, or any person whom he may designate in writing, shall at all times have access to the tape recordings and other materials . . .,' § 102(c).46 The District Court correctly construed this as safeguarding appellant's right to inspect, copy, and use the materials in issue, 408 F.Supp., at 375, paralleling the right to 'make reproductions' contained in the Nixon-Sampson agreement, App. 40. And even if we assume that there is merit in appellant's complaint that his property has been confiscated. Brief for Appellant 140, the Act expressly provides for the payment of just compensation under § 105(c); see supra, at 475.
94
Other features of the Act further belie any punitive interpretation. In promulgating regulations under the Act, the General Services Administration is expressly directed by Congress to protect appellant's or 'any party's opportunity to assert any legally or constitutionally based right or privilege . . ..' § 104(a)(5). More importantly, the Act preserves for appellant all of the protections that inhere in a judicial proceeding, for § 105(a) not only assures district court jurisdiction and judicial review over all his legal claims, but commands that any such challenge asserted by appellant 'shall have priority on the docket of such court over other cases.' A leading sponsor of the bill emphasized that this expedited treatment is expressly designed 'to protect Mr. Nixon's property or other legal rights . . ..' 120 Cong.Rec. 33854 (1974) (Sen. Ervin). Finally, the Congress has ordered the General Services Administration to establish regulations that recognize 'the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to' the articulated objectives of the Act, § 104(a)(7). While appellant obviously is not set at ease by these precautions and safeguards, they confirm the soundness of the opinion given the Senate by the law division of the Congressional Research Service: '(B)ecause the proposed bill does not impose criminal penalties or other punishment, it would not appear to violate the Bill of Attainder Clause.' 120 Cong.Rec. 33853 (1974).47
95
One final consideration should be mentioned in light of the unique posture of this controversy. In determining whether a legislature sought to inflict punishment on an individual, it is often useful to inquire into the existence of less burdensome alternatives by which that legislature (here Congress) could have achieved its legitimate nonpunitive objectives. Today, in framing his challenge to the Act, appellant contends that such an alternative was readily available:
96
'If Congress had provided that the Attorney General or the Administrator of General Services could institute a civil suit in an appropriate federal court to enjoin disposition . . . of presidential historical materials . . . by any person who could be shown to be an 'unreliable custodian' or who had 'engaged in misconduct' or who 'would violate a criminal prohibition,' the statute would have left to judicial determination, after a fair proceeding, the factual allegations regarding Mr. Nixon's blameworthiness.' Brief for Appellant 137.
97
We have no doubt that Congress might have selected this course. It very will may be, however, that Congress chose not to do so on the view that a full-fledged judicial inquiry into appellant's conduct and reliability would be no less punitive and intrusive than the solution actually adopted. For Congress doubtless was well aware that just three months earlier, appellant had resisted efforts to subject himself and his records to the scrutiny of the Judicial Branch, United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), a position apparently maintained to this day.48 A rational and fairminded Congress, therefore, might well have decided that the carefully tailored law that it enacted would be less objectionable to appellant than the alternative that he today appears to endorse. To be sure, if the record were unambiguously to demonstrate that the Act represents the infliction of legislative punishment, the fact that the judicial alternative poses its own difficulties would be of no constitutional significance. But the record suggests the contrary, and the unique choice that Congress faced buttresses our conclusion that the Act cannot fairly be read to inflict legislative punishment as forbidden by the Constitution.
98
We, of course, are not blind to appellant's plea that we recognize the social and political realities of 1974. It was a period of political turbulence unprecedented in our history. But this Court is not free to invalidate Acts of Congress based upon inferences that we may be asked to draw from our personalized reading of the contemporary scene or recent history. In judging the constitutionality of the Act, we may only look to its terms, to the intent expressed by Members of Congress who voted its passage, and to the existence or nonexistence of legitimate explanations for its apparent effect. We are persuaded that none of these factors is suggestive that the Act is a punitive bill of attainder, or otherwise facially unconstitutional. The judgment of the District Court is
99
Affirmed.
100
Mr. Justice STEVENS, concurring.
101
The statute before the Court does not apply to all Presidents or former Presidents. It singles out one, by name, for special treatment. Unlike all other former Presidents in our history, he is denied custody of his own Presidential papers; he is subjected to the burden of prolonged litigation over the administration of the statute; and his most private papers and conversations are to be scrutinized by Government archivists. The statute implicitly condemns him as an unreliable custodian of his papers. Legislation which subjects a named individual to this humiliating treatment must raise serious questions under the Bill of Attainder Clause.
102
Bills of attainder were typically directed at once powerful leaders of government. By special legislative Acts, Parliament deprived one statesman after another of his reputation, his property, and his potential for future leadership. The motivation for such bills was as much political as it was punitive and often the victims were those who had been the most relentless in attacking their political enemies at the height of their own power.1 In light of this history, legislation like that before us must be scrutinized with great care.
103
Our cases 'stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.' United States v. Lovett, 328 U.S. 303, 315-316, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252. The concept of punishment involves not only the character of the deprivation, but also the manner in which that deprivation is imposed. It has been held permissible for Congress to deprive Communist deportees, as a group, of their social security benefits, Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435, but it would surely be a bill of attainder for Congress to deprive a single, named individual of the same benefit. Cf. id., at 614, 80 S.Ct., at 1374. The very specificity of the statute would mark it as punishment, for there is rarely any valid reason for such narrow legislation; and normally the Constitution requires Congress to proceed by general rulemaking rather than by deciding individual cases. United States v. Brown, 381 U.S. 437, 442-446, 85 S.Ct. 1707, 1711-1713, 14 L.Ed.2d 484.
104
Like the Court, however, I am persuaded that 'appellant constituted a legitimate class of one . . ..' Ante, at 472. The opinion of the Court leaves unmentioned the two facts which I consider decisive in this regard. Appellant resigned his office under unique circumstances and accepted a pardon2 for any offenses committed while in office. By so doing, he placed himself in a different class from all other Presidents. Cf. Orloff v. Willougby, 345 U.S. 83, 90-91, 73 S.Ct. 534, 538-539, 97 L.Ed. 842. Even though unmentioned, it would be unrealistic to assume that historic facts of this consequence did not affect the legislative decision.3
105
Since these facts provide a legitimate justification for the specificity of the statute, they also avoid the conclusion that this otherwise nonpunitive statute is made punitive by its specificity. If I did not consider it appropriate to take judicial notice of those facts, I would be unwilling to uphold the power of Congress to enact special legislation directed only at one former President at a time when his popularity was at its nadir. For even when it deals with Presidents or former Presidents, the legislative focus should be upon 'the calling' rather than 'the person.' Cf. Cummings v. Missouri, 4 Wall. 277, 320, 18 L.Ed. 356. In short, in my view, this case will not be a precedent for future legislation which relates, not to the Office of President, but just to one of its occupants.
106
Without imputing a similar reservation to the Court, I join its opinion with the qualification that these unmentioned facts have had a critical influence on my vote to affirm.
107
Mr. Justice WHITE, concurring in part and concurring in the judgment.
108
I concur in the judgment and, except for Part VII, in the Court's opinion. With respect to the bill of attainder issue, I concur in the result reached in Part VII; the statute does not impose 'punishment' and is not, therefore, a bill of attainder. See United States v. Brown, 381 U.S. 437, 462, 85 S.Ct. 1707, 1722, 14 L.Ed.2d 484 (1965) (White, J., dissenting). I also append the following observations with respect to one of the many issues in this case.
109
It is conceded by all concerned that a very small portion of the vast collection of Presidential materials now in possession of the Administrator consists of purely private materials, such as diaries, recordings of family conversations, private correspondence 'personal property of any kind not involving the actual transaction of government business.' Tr. of Oral Arg. 55. It is also conceded by the federal and other appellees that these private materials, once identified, must be returned to Mr. Nixon. Id., at 38-40, 57-59. The Court now declares that 'the Government (without awaiting a court order) should now promptly disclaim any interest in materials conceded to be appellant's purely private communications and deliver them to him.' Ante, at 459 n. 22. I agree that the separation and return of these materials should proceed without delay. Furthermore, even if under the Act this process can occur only after the issuance of regulations under § 104 that are subject to congressional approval, surely regulations covering this narrow subject matter need not take long to effectuate.
110
Also, § 104(a)(7) suggests that the private materials to be returned to Mr. Nixon are limited to those that 'are not otherwise of general historical significance.' But, as I see it, the validity of the Act would be questionable if mere historical significance sufficed to withhold purely private letters or diaries; and in view of the other provisions of the Act, particularly § 104(a) (5), it need not be so construed. Purely private materials, whether or not of historical interest, are to be delivered to Mr. Nixon. The federal and other appellees conceded as much at oral argument.*
111
Similarly, although the Court relies to some extent on the statutory recognition of the constitutional right to compensation in the event it is determined that the Government has confiscated Mr. Nixon's property, I would question whether a mere historical interest in purely private communications would be a sufficient predicate for taking them for public use. Historical considerations are normally sufficient grounds for condemning property, United States v. Gettysburg Electric R. Co., 160 U.S. 668, 16 S.Ct. 427, 40 L.Ed. 576 (1896); Roe v. Kansas, 278 U.S. 191, 49 S.Ct. 160, 73 L.Ed. 259 (1929); but whatever may be true of the great bulk of the materials in the event they are declared to be Mr. Nixon's property, I doubt that the Government is entitled to his purely private communications merely because it wants to preserve them and offers compensation.
112
Mr. Justice BLACKMUN, concurring in part and concurring in the judgment.
113
My posture in this case is essentially that of Mr. Justice POWELL, post, p. 492. I refrain from joining his opinion, however, because I fall somewhat short of sharing his view, post, at 498 and 501-502, that the incumbent President's submission, made through the Solicitor General, that the Act serves rather than hinders the Chief Executive's Art. II functions, is dispositive of the separation-of-powers issue. I would be willing to agree that it is significant and that it is entitled to serious consideration, but I am not convinced that it is dispositive. The fact that President Ford signed the Act does not mean that he necessarily approved of its every detail. Political realities often guide a President to a decision not to veto.
114
One must remind oneself that our Nation's history reveals a number of instances where Presidential transition has not been particularly friendly or easy. On occasion it has been openly hostile. It is my hope and anticipation as it obviously is of the others who have written in this case that this Act, concerned as it is with what the Court describes, ante, at 472, as 'a legitimate class of one,' will not become a model for the disposition of the papers of each President who leaves office at a time when his successor or the Congress is not of his political persuasion.
115
I agree fully with my Brother POWELL when he observes, post, at 503, that the 'difficult constitutional questions lie ahead' for resolution in the future. Reserving judgment on those issues for a more appropriate time certainly not now I, too, join the judgment of the Court and agree with much of its opinion. I specifically join Part VII of the Court's opinion.
116
Mr. Justice POWELL, concurring in part and concurring in the judgment.
117
I join the judgment of the Court and all but Parts IV and V of its opinion. For substantially the reasons stated by the Court, I agree that the Presidential Recordings and Materials Preservation Act (Act) on its face does not violate appellant's rights under the First, Fourth, and Fifth Amendments and the Bill of Attainder Clause.1 For reasons quite different from those stated by the Court, I also would hold that the Act is consistent on its face with the principle of separation of powers.
118
* The Court begins its analysis of the issues by limiting its inquiry to those constitutional claims that are addressed to 'the facial validity of the provisions of the Act requiring the Administrator to take the recordings and materials into the Government's custody subject to screening by Government archivists.' Ante, at 439. I agree that the inquiry must be limited in this manner, but I would add two qualifications that in my view further restrict the reach of today's decision.
119
First, Title I of Pub.L. 93-526 (the Act) does not purport to be a generalized provision addressed to the complex problem of disposition of the accumulated papers of Presidents or other federal officers. Unlike Title II of Pub.L. 93-526 (The Public Documents Act), which authorizes a study of that problem, Title I is addressed specifically and narrowly to the need to preserve the papers of former President Nixon after his resignation under threat of impeachment. It is legislation, as the Court properly observes, directed against 'a legitimate class of one.' Ante, at 472.
120
President Nixon resigned on August 9, 1974. Less than two weeks earlier, the House Judiciary Committee had voted to recommend his impeachment, H.R.Rep.No. 93-1305, pp. 10-11 (1974), including among the charges of impeachable offenses allegations that the President had obstructed investigation of the Watergate break-in and had engaged in other unlawful activities during his administration. Id., at 1-4. One month after President Nixon's resignation, on September 8, 1974, President Ford granted him a general pardon for all offenses against the United States that he might have committed in his term of office.
121
On the same day, the Nixon-Sampson agreement was made public. The agreement provided for the materials to be deposited temporarily with the General Services Administration in a California facility, but gave the former President the right to withdraw or direct the destruction of any materials after an initial period of three years or, in the case of tape recordings, five years. During this initial period access would be limited to President Nixon and persons authorized by him, subject only to legal process ordering materials to be produced. Upon President Nixon's death, the tapes were to be destroyed immediately. 10 Weekly Comp. of Pres. Doc. 1104-1105 (1974).
122
Those who drafted and sponsored Title I in Congress uniformly viewed its provisions as emergency legislation, necessitated by the extraordinary events that led to the resignation and pardon and to the former President's arrangement for the disposition of his papers. Senator Nelson, for example, referred to the bill as 'an emergency measure' whose principal purpose was to assure 'protective custody' of the materials. 120 Cong.Rec. 33848, 33850-33851 (1974).
123
'(T)here is an urgency in the situation now before us. Under the existing agreement between the GSA and Mr. Nixon, if Mr. Nixon died tomorrow, those tapes if I read the agreement correctly are to be destroyed immediately; it is also possible that the Nixon papers could be destroyed by 1977. This would be a catastroph(e) from an historical standpoint.' Id., at 33857.
Senator Ervin similarly remarked:
124
'This bill really deals with an emergency situation, because some of these documents are needed in the courts and by the general public in order that they might know the full story of what is known collectively as the Watergate affair.' Id., at 33855.
125
Efforts to apply the legislation more generally to all Presidents or to other federal officers were resisted on the Senate floor. Thus, speaking again of the unique needs created by the Nixon-Sampson agreement and the Watergate scandals, Senator Javits stressed that 'we seek to deal in this particular legislation, only with this particular set of papers of this particular ex-President.' Id., at 33860. See generally S.Rep.No.93-1181 (1974).
126
It is essential in addressing the constitutional issues before us not to lose sight of the limited justification for and objectives of this legislation. The extraordinary events that led to the resignation and pardon, and the agreement providing that the record of those events might be destroyed by President Nixon, created an impetus for congressional action that may without overstatement be termed unique. I therefore do not share my Brother REHNQUIST's foreboding that this Act 'will daily stand as a veritable sword of Damocles over every succeeding President and his advisers.' Post, at 545. If the study authorized by Title II should lead to more general legislation, there will be time enough to consider its validity if a proper case comes before us.
127
My second reservation follows from the first. Because Congress acted in what it perceived to be an emergency, it concentrated on the immediate problem of establishing governmental custody for the purpose of safeguarding the materials. It deliberately left to the rulemaking process, and to subsequent judicial review, the difficult and sensitive task of reconciling the long-range interests of President Nixon, his advisors, the three branches of Government, and the American public, once custody was established. As the District Court observed:
128
'The Act in terms merely directs GSA to take custody of the materials that fall within the scope of section 101, and to promulgate regulations after taking into consideration the seven factors listed in section 104(a). Those factors provide broad latitude to the Administrator in establishing the processes and standards under which the materials will be reviewed and public access to them afforded. . . .' 408 F.Supp. 321, 335 (1976) (footnote omitted).
129
In view of the latitude that the Act gives to GSA in framing regulations, I agree with the District Court that the question to be resolved in this case is a narrow one: 'Is the regulatory scheme enacted by Congress unconstitutional without reference to the content of any conceivable set of regulations falling within the scope of the Administrator's authority under section 104(a)?' Id., at 334-335.
130
No regulations have yet taken effect under § 104(a). Ante, at 437. In these circumstances, I believe it is appropriate to address appellant's constitutional claims, as did the District Court, with an eye toward the kind of regulations and screening practices that would be consistent with the Act and yet that would afford protection to the important constitutional interests asserted. Section 104(a)(5) of the Act directs the Administrator to take into account
131
'the need to protect any party's opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials.'
132
The District Court observed that in considering this factor, the Administrator might well provide for meaningful participation by appellant in the screening process and in the selection of the archivists who would review the materials. The court also observed that procedures might be adopted that would minimize any intrusion into private materials and that would permit appellant an opportunity to obtain administrative and judicial review of all proposed classifications of the materials. 408 F.Supp., at 339-340.2 Finally, the court noted that substantive restrictions on access might be adopted, consistent with traditional restrictions placed on access to Presidential papers, and that such restrictions could forbid public disclosure of any confidential communications between appellant and his advisors 'for a fixed period of years, or until the death of Mr. Nixon and others participating in or the subject of communications.' Id., at 338.3
133
I have no doubt that procedural safeguards and substantive restrictions such as these are within the authority of the Administrator to adopt under the board mandate of § 104(a). While there can be no positive assurance that such protections will in fact be afforded, we nonetheless may assume, in reviewing the facial validity of the Act that all constitutional and legal rights will be given full protection. Indeed, that assumption is the basis on which I join today's judgment upholding the facial validity of the Act. As the Court makes clear in its opinion, the Act plainly requires the Administrator, in designing the regulations, to 'consider the need to protect the constitutional rights of appellant and other individuals against infringement by the processing itself or, ultimately, by public access to the materials retained.' Ante, at 436.
II
134
I agree that the Act cannot be held unconstitutional on its face as a violation of the principle of separation of powers or of the Presidential privilege that dervies from that principle. This is not a case in which the Legislative Branch has exceeded its enumerated powers by assuming a function reserved to the Executive under Art. II. E. g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). The question of governmental power in this case is whether the Act, by mandating seizure and eventual public access to the papers of the Nixon Presidency, impermissibly interferes with the President's power to carry out his Art. II obligations. In concluding that the Act is not facially invalid on this ground, I consider it dispositive in the circumstances of this case that the incumbent President has represented to this Court, through the Solicitor General, that the Act serves rather than hinders the Art. II functions of the Chief Executive.
135
I would begin by asking whether, putting to one side other limiting provisions of the Constitution, Congress has acted beyond the scope of its enumerated powers. Cf. Reid v. Covert, 354 U.S. 1, 70, 77 S.Ct. 1222, 1258, 1 L.Ed.2d 1148 (1957) (Harlan, J., concurring). Apart from the legislative concerns mentioned by the Court, ante, at 476-478, I believe that Congress unquestionably has acted within the ambit of its broad authority to investigate, to inform the public, and, ultimately, to legislate against suspected corruption and abuse of power in the Executive Branch.
136
This Court has recognized inherent power in Congress to pass appropriate legislation to 'preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption.' Burroughs v. United States, 290 U.S. 534, 545, 54 S.Ct. 287, 290, 78 L.Ed. 484 (1934). Congress has the power, for example, to restrict the political activities of civil servants, e. g., CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); to punish bribery and conflicts of interest, e. g., Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057 (1906); to punish obstructions of lawful governmental functions, Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L.Ed. 569 (1910); and with important exceptions to make executive documents available to the public, EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). The Court also has recognized that in aid of such legislation Congress has a broad power 'to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.' Watkins v. United States, 354 U.S. 178, 200 n. 33, 77 S.Ct. 1173, 1185 n. 33, 1 L.Ed.2d 1273 (1957). See also Buckley v. Valeo, supra, 424 U.S., at 137-138, 96 S.Ct., at 690-691; Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975).
137
The legislation before us rationally serves these investigative and informative powers. Congress legitimately could conclude that the Nixon-Sampson agreement, following the recommendation of impeachment and the resignation of President Nixon, might lead to destruction of those of the former President's papers that would be most likely to assure public understanding of the unprecedented events that led to the premature termination of the Nixon administration. Congress similarly could conclude that preservation of the papers was important to its own eventual understanding of whether that administration had been characterized by deficiencies susceptible of legislative correction. Providing for retention of the materials by the Administrator and for the selection of appropriate materials for eventual disclosure to the public was a rational means of serving these legitimate congressional objectives.
138
Congress still might be said to have exceeded its enumerated powers, however, if the Act could be viewed as an assumption by the Legislative Branch of functions reserved exclusively to the Executive by Art. II. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), for example, the Court buttressed its conclusion that the President had acted beyond his power under Art. II by characterizing his seizure of the steel mills as an exercise of a 'legislative' function reserved exclusively to Congress by Art. I. 343 U.S., at 588-589, 72 S.Ct., at 867. And last Term we reaffirmed the fundamental principle that the appointment of executive officers is an 'Executive' function that Congress is without power to vest in itself. Buckley v. Valeo, supra, 424 U.S., at 124-141, 96 S.Ct., at 684-693. But the Act before us presumptively avoids these difficulties by entrusting the task of ensuring that its provisions are faithfully executed to an officer of the Executive Branch.4
139
I therefore conclude that the Act cannot be held invalid on the ground that Congress has exceeded its affirmative grant of power under the Constitution. But it is further argued that Congress nonetheless has contravened the limitations on legislative power implicitly imposed by the creation of a coequal Executive Branch in Art. II. It is said that by opening-up the operations of a past administration to eventual public scrutiny, the Act impairs the ability of present and future Presidents to obtain unfettered information and candid advice and thereby limits executive power in contravention of Act. II and the principle of separation of powers. I see no material distinction between such an argument and the collateral claim that the Act violates the Presidential privilege in confidential communications.
140
In United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (Nixon I), we recognized a presumptive, yet qualified, privilege for confidential communications between the President and his advisors. Observing that 'those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process,' id., at 705, 94 S.Ct., at 3106, we recognized that a President's generalized interest in confidentiality is 'constitutionally based' to the extent that it relates to 'the effective discharge of a President's powers.' Id., at 711, 94 S.Ct., at 3109. We held nonetheless that '(t)he generalized assertion of privilege must yield to the demonstrated, specified need for evidence in a pending criminal trial.' Id., at 713, 94 S.Ct., at 3110.
141
Appellant understandably relies on Nixon I. Comparing the narrow scope of the judicial subpoenas considered there with the comprehensive reach of this Act encompassing all of the communications of his administration appellant argues that there is no 'demonstrated, specific need' here that can outweigh the extraordinary intrusion worked by this legislation. On the ground that the result will be to destroy 'the effective discharge of the President's powers,' appellant urges that the Act be held unconstitutional on its face.
142
These arguments undoubtedly have considerable force, but I do not think they can support a decision invalidating this Act on its face. Section 1 of Art. II vests all of the executive power in the sitting President and limits his term of office to four years. It is his sole responsibility to 'take Care that the Laws be faithfully executed.' Art. II, § 3. Here, as previously noted, President Carter has represented to this Court through the Solicitor General that the Act is consistent with 'the effective discharge of the President's powers':
143
'Far from constituting a breach of executive autonomy, the Act . . . is an appropriate means of ensuring that the Executive Branch will have access to the materials necessary to the performance of its duties.' Brief for Federal Appellees 29.
144
This representation is similar to one made earlier on behalf of President Ford, who signed the Act. Motion of Federal Appellees to Affirm 15. I would hold that these representations must be given precedence over appellant's claim of Presidential privilege. Since the incumbent President views this Act as furthering rather than hindering effective execution of the laws, I do not believe it is within the province of this Court to hold otherwise.
145
This is not to say that a former President lacks standing to assert a claim of Presidential privilege. I agree with the Court that the former President may raise such a claim, whether before a court or a congressional committee. In some circumstances the intervention of the incumbent President will be impractical or his views unknown, and in such a case I assume that the former President's views on the effective operation of the Executive Branch would be entitled to the greatest deference. It is uncontroverted, I believe, that the privilege in confidential Presidential communications survives a change in administrations. I would only hold that in the circumstances here presented the incumbent, having made clear in the appropriate forum his opposition to the former President's claim, alone can speak for the Executive Branch.5
146
I am not unmindful that '(i)t is emphatically the province and duty of the judicial department to say what the law is.' Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). As we reiterated in Nixon I:
147
"Deciding whether a matter has in any measure been committed by the Constitution to another branch of government . . . is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." 418 U.S., at 704, 94 S.Ct., at 3105-3106, quoting Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962).
148
My position is simply that a decision to waive the privileges inhering in the Office of the President with respect to an otherwise valid Act of Congress is the President's alone to make under the Constitution.6
III
149
The difficult constitutional questions lie ahead. The President no doubt will see to it that the interests in confidentiality so forcefully urged by THE CHIEF JUSTICE and Mr. Justice REHNQUIST in their dissenting opinions are taken into account in the final regulations that are promulgated under s 104(a). While the incumbent President has supported the constitutionality of the Act as it is written, there is no indication that he will oppose appellant's assertions of Presidential privilege as they relate to the rules that will govern the screening process and the timing of disclosure, and particularly the restrictions that may be placed on certain documents and recordings. I emphasize that the validity of such assertions of Presidential privilege is not properly before us at this time.
150
Similarly, difficult and important questions concerning individual rights remain to be resolved. At stake are not only the rights of appellant but also those of other individuals whose First, Fourth, and Fifth Amendment interests may be implicated by disclosure of communications as to which a legitimate expectation of privacy existed. I agree with the Court that even in the councils of Government an individual 'has a legitimate expectation of privacy in his personal communications,' ante, at 465, and also that compelled disclosure of an individual's political associations, in and out of Government, can be justified only by 'a compelling public need that cannot be met in a less restrictive way,' ante, at 467. Today's decision is limited to the facial validity of the Act's provisions for retention and screening of the materials. The Court's discussion of the interests served by those provisions should not foreclose in any way the search that must yet undertaken for means of assuring eventual access to important historical records without infringing individual rights protected by the First, Fourth, and Fifth Amendments.
151
Mr. Chief Justice BURGER, dissenting.
152
In my view, the Court's holding is a grave repudiation of nearly 200 years of judicial precedent and historical practice. That repudiation arises out of an Act of Congress passed in the aftermath of a great national crisis which culminated in the resignation of a President. The Act (Title I of Pub.L. 93-526) violates firmly established constitutional principles in several respects.
153
I find it very disturbing that fundamental principles of constitutional law are subordinated to what seem the needs of a particular situation. That moments of great national distress give rise to passions reminds us why the three branches of Government were created as separate and coequal, each intended as a check, in turn, on possible excesses by one or both of the others. The Court, however, has now joined a Congress, in haste to 'do something,' and has invaded historic, fundamental principles of the separate powers of coequal branches of Government. To 'punish' one person, Congress and now the Court tears into the fabric of our constitutional framework.
154
Any case in this Court calling upon principles of separation of powers, rights of privacy, and the prohibitions against bills of attainder, whether urged by a former President or any citizen is inevitably a major constitutional holding. Mr. Justice Holmes, speaking of the tendency of 'great cases like hard cases (to make) bad law,' went on to observe the dangers inherent when
155
'some accident of immediate overwhelming interest . . . appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.' Northern Securities Co. v. United States, 193 U.S. 197, at 400-401, 24 S.Ct. 436, at 468, 48 L.Ed. 679 (1904) (dissenting opinion).
156
Well-settled principles of law are bent today by the Court under that kind of 'hydraulic pressure.'
157
* Separation of Powers
158
Appellant urges that Title I is an unconstitutional intrusion by Congress into the internal workings of the Office of the President, in violation of the constitutional principles of separation of powers. Three reasons support that conclusion. The well-established principles of separation of powers, as developed in the decisions of this Court, are violated if Congress compels or coerces the President, in matters relating to the operation and conduct of his office.1 Next, the Act is an exercise of executive not legislative power by the Legislative Branch. Finally, Title I works a sweeping modification of the constitutional privilege and historical practice of confidentiality of every Chief Executive since 1789.
159
As a threshold matter, we should first establish the standard of constitutional review by which Title I is to be judged. In the usual case, of course, legislation challenged in this Court benefits from a presumption of constitutionality. To survive judicial scrutiny a statutory enactment need only have a reasonable relationship to the promotion of an objective which the Constitution does not independently forbid, unless the legislation trenches on fundamental constitutional rights.
160
But where challenged legislation implicates fundamental constitutional guarantees, a far more demanding scrutiny is required. For example, this Court has held that the presumption of constitutionality does not apply with equal force where the very legitimacy of the composition of representative institutions is at stake. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Similarly, the presumption of constitutionality is lessened when the Court reviews legislation endangering fundamental constitutional rights, such as freedom of speech, or denying persons governmental rights or benefits because of race. Legislation touching substantially on these areas comes here bearing a heavy burden which its proponents must carry.
161
Long ago, this Court found the ordinary presumption of constitutionality inappropriate in measuring legislation directly impinging on the basic tripartite structure of our Government. In Kilbourn v. Thompson, 103 U.S. 168, 192, 26 L.Ed. 377 (1880), Mr. Justice Miller observed for the Court that encroachments by Congress posed the greatest threat to the continued independence of the other branches.2 Accordingly, he cautioned that the exercise of power by one branch directly affecting the potential independence of another 'should be watched with vigilance, and when called in question before any other tribunal . . . should receive the most careful scrutiny.' Ibid. (Emphasis supplied.) See also Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).
162
Our role in reviewing legislation which touches on the fundamental structure of our Government is therefore akin to that which obtains when reviewing reviewing legislation touching on other fundamental constitutional guarantees. Because separation of powers is the base framework of our governmental system and the means by which all our liberties depend, Title I can be upheld only if it is necessary to secure some overriding governmental objective, and if there is no reasonable alternative which will trench less heavily on separation-of-powers principles.
B
163
Separation of powers is in no sense a formalism. It is the characteristic that distinguished our system from all others conceived up to the time of our Constitution. With federalism, separation of powers is 'one of the two great structural principles of the American constitutional system . . ..' E. Corwin, The President 9 (1957). See also Griswold v. Connecticut, 381 U.S. 479, 501, 85 S.Ct. 1678, 1690-1691, 14 L.Ed.2d 510 (1965) (Harlan, J., concurring in judgment).
164
In pursuit of that principle, executive power was vested in the President; no other offices in the Executive Branch, other than the Presidency and Vice Presidency, were mandated by the Constitution. Only two Executive Branch offices, therefore, are creatures of the Constitution; all other departments and agencies, from the State Department to the General Services Administration, are creatures of the Congress and owe their very existence to the Legislative Branch.3
165
The Presidency, in contrast, stands on a very different footing. Unlike the vast array of departments which the President oversees, the Presidency is in no sense a creature of the Legislature. The President's powers originate not from statute, but from the constitutional command to 'take Care that the Laws be faithfully executed . . ..' These independent, constitutional origins of the Presidency have an important bearing on determining the appropriate extent of congressional power over the Chief-Executive or his records and workpapers. For, although the branches of Government are obviously not divided into 'watertight compartments,' Springer v. Philippine Islands, 277 U.S. 189, 211, 48 S.Ct. 480, 485, 72 L.Ed. 845 (1928) (Holmes, J., dissenting), the office of the Presidency, as a constitutional equal of Congress, must as a general proposition be free from Congress' coercive powers.4 This is not simply an abstract proposition of political philosophy; it is a fundamental prohibition plainly established by the decisions of this Court.
166
A unanimous Court, including Mr. Chief Justice Taft, Mr. Justice Holmes, and Mr. Justice Brandeis stated:
167
'The general rule is that neither department (of Government) may . . . control, direct or restrain the action of the other.' Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923).
168
Similarly, in O'Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 743, 77 L.Ed. 1356 (1933), the Court emphasized the need for each branch of Government to be free from the coercive influence of the other branches:
169
'(E)ach department should be kept completely independent of the others independent not in the sense that they shall not cooperate to the common end of carrying into effect the purposes of the Constitution, but in the sense that the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other departments.'
170
In Humphrey's Executor v. United States, 295 U.S. 602, 629-630, 55 S.Ct. 869, 874, 79 L.Ed. 1611 (1935), the Court again held:
171
'The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers . . ..' (Emphasis supplied.)
172
Consistent with the principle of noncoercion, the unbroken practice since George Washington with respect to congressional demands for White House papers has been, in Mr. Chief Justice Taft's words, that 'while either house (of Congress) may request information, it cannot compel it . . ..' W. Taft, The Presidency 110 (1916). President Washington established the tradition by declining to produce papers requested by the House of Representatives relating to matters of foreign policy:
173
'To admit, then a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.' 1 Messages and Papers of the Presidents 195 (J. Richardson Comp., 1899).
174
In noting the first President's practice, this Court stated in United States v. Curtiss-Wright Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 221, 81 L.Ed. 255 (1936), that Washington's historic precedent was 'a refusal the wisdom of which was recognized by the House itself and has never since been doubted.'5
175
Part of our constitutional fabric, then, from the beginning has been the President's freedom from control or coercion by Congress, including attempts to procure documents that, though clearly pertaining to matters of important governmental interests, belong and pertain to the President. This freedom from Congress' coercive influence, in the words of Humphrey's Executor, 'is implied in the very fact of the separation of the powers . . ..' 295 U.S., at 629-630, 55 S.Ct., at 874. Moreover, it is not constitutionally significant that Congress has not directed that the papers be turned over to it for examination or retention, rather than to GSA. Separation of powers is fully implicated simply by Congress' mandating what disposition is to be made of the papers of another branch.
176
This independence of the three branches of Government, including control over the papers of each, lies at the heart of this Court's broad holdings concerning the immunity of congressional papers from outside scrutiny. The Constitution, of course, expressly grants immunity to Members of Congress as to any 'Speech or Debate in either House . . .'; yet the Court has refused to confine that Clause literally 'to words spoken in debate.' Powell v. McCormack, 395 U.S. 486, 502, 89 S.Ct. 1944, 1954, 23 L.Ed.2d 491 (1969). Congressional papers, including congressional reports, have been held protected by the Clause in order "to prevent intimidation (of legislators) by the executive and accountability before a possibly hostile judiciary." Ibid. In a word, to preserve the constitutionally rooted independence of each branch of Government, each branch must be able to control its own papers.
177
Title I is an unprecedented departure from the constitutional tradition of noncompulsion. The statute commands the head of a legislatively created department to take and maintain custody of appellant's Presidential papers, including many purely personal papers wholly unrelated to any operations of the Government. Title I does not concern itself in any way with materials belonging to departments of the Executive Branch created and controlled by Congress.
178
The Court brushes aside the fundamental principle of noncompulsion, abandoning outright the careful, previously unchallenged holdings of this Court in Mellon, O'Donoghue's and Humphrey's Executor. In place of this firmly established doctrine,6 the Court substitutes, without analysis, an ill-defined 'pragmatic, flexible approach.' Ante, at 442. Recasting, for the immediate purposes of this case, our narrow holding in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), see infra, at 515-516, the Court distills separation-of-powers principles into a simplistic rule which requires a 'potential for disruption' or an 'unduly disruptive' intrusion, before a measure will be held to trench on Presidential powers.7
179
The Court's approach patently ignores Buckley v. Valeo, where, only one year ago, we unanimously found a separation-of-powers violation without any allegation, much less a showing, of 'undue disruption.' There, we held that Congress could not impinge, even to the modest extent of six appointments to the Federal Election Commission, on the appointing powers of the President. We reached this conclusion in the face of the fact that President Ford had signed the bill into law.8
180
But even taking the 'undue disruption' test as postulated, the Court engages in a facile analysis, as Mr. Justice REHNQUIST so well demonstrates. We are told, under the Court's view, that no 'undue disruption' arises because GSA officials have taken custody of appellant's Presidential papers, and since, for the time being, only GSA and other Executive Branch officials will have access to them. Ante, at 443-444.
181
This analysis is superficial in the extreme. Separation-of-powers principles are no less eroded simply because Congress goes through a 'minuet' of directing Executive Department employees, rather than the Secretary of the Senate or the Doorkeeper of the House, to possess and control Presidential papers. Whether there has been a violation of separation-of-powers principles depends, not on the identity of the custodians, but upon which branch has commanded the custodians to act. Here, Congress has given the command.
182
If separation-of-powers principles can be so easily evaded, then the constitutional separation is a sham.
183
Congress' power to regulate Executive Department documents, as contrasted with Presidential papers, under such measures as the Freedom of Information Act, 5 U.S.C. § 552 (1970 ed. and Supp. V), does not bear on the question. No one challenges Congress' power to provide for access to records of the Executive Departments which Congress itself created. But the Freedom of Information Act, the Privacy Act of 1974, and similar measures never contemplated mandatory production of Presidential papers. What is instructive, by contrast, is the nonmandatory, noncoercive manner in which Congress has previously legislated with respect to Presidential papers, by providing for Presidential libraries at the option of every former President. Title I, however, breaches the nonmandatory tradition that has long been a vital incident of separation of powers.
C
184
The statute, therefore, violates separation-of-powers principles because it exercises a coercive influence by another branch over the Presidency. The legislation is also invalid on another ground pertaining to separation of powers; it is an attempt by Congress to exercise powers vested exclusively in the President the power to control files, records, and papers of the office, which are comparable to the internal workpapers of Members of the House and Senate.
185
The general principle as to this aspect of separation of powers was stated in Kilbourn v. Thompson:
186
'(E)ach (branch) shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.
187
'(A)s a general rule . . . the powers confided by the Constitution to one of these departments cannot be exercised by another.' 103 U.S., at 191.
Madison also expressed this:
188
'For this reason that Convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time.' The Federalist No. 48, p. 335 (J. Cooke ed. 1961) (quoting Jefferson).
189
In the 1975 Term, in the face of a holding by a Court of Appeals that the separation-of-powers challenge was meritless, we unanimously invalidated an attempt by Congress to exercise appointing powers constitutionally vested in the Chief Executive. Buckley v. Valeo, 424 U.S., at 109-143, 96 S.Ct., at 677-693.
190
The Constitution does not speak of Presidential papers, just as it does not speak of workpapers of Members of Congress or of judges.9 But there can be no room for doubt that, up to now, it has been the implied prerogative of the President as of Members of Congress and of judges to memorialize matters, establish filing systems, and provide unilaterally for disposition of his work papers. Control of Presidential papers is, obviously, a natural and necessary incident of the broad discretion vested in the President in order for him to discharge his duties.10
191
To be sure, we recognized a narrowly limited exception to Presidential control of Presidential papers in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). But that case permits compulsory judicial intrusions only when a vital constitutional function, i. e., the conduct of criminal proceedings, would be impaired and when the President makes no more 'than a generalized claim of . . . public interest . . .,' id., at 707, 94 S.Ct., at 3107, in maintaining complete control of papers and in preserving confidentiality. That case, in short, was essentially a conflict between the Judicial Branch and the President, where the effective functioning of both branches demanded an accommodation and where the prosecutorial and judicial demands upon the President were very narrowly restricted with great specificity 'to a limited number of conversations . . ..' Moreover, the request for production there was limited to materials that might themselves contain evidence of criminal activity of persons then under investigation or indictment. Finally, the intrusion was carefully limited to an in camera examination, under strict limits, by a single United States District Judge. That case does not stand for the proposition that the Judiciary is at liberty to order all papers of a President into custody of United States Marshals.11
192
United States v. Nixon, therefore, provides no authority for Congress' mandatory regulation of Presidential papers simply 'to promote the general Welfare' which, of course, is a generalized purpose. No showing has been made, nor could it, that Congress' functions will be impaired by the former President's being allowed to control his own Presidential papers.12 Without any threat whatever to its own functions, Congress has by this statute, as in Buckley v. Valeo, exercised authority entrusted to the Executive Branch.13
D
193
Finally, in my view, the Act violates principles of separation of powers by intruding into the confidentiality of Presidential communications protected by the constitutionally based doctrine of Presidential privilege. A unanimous Court in United States v. Nixon could not have been clearer in holding that the privilege guaranteeing confidentiality of such communications derives from the Constitution, subject to compelled disclosure only in narrowly limited circumstances:
194
'A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.' 418 U.S., at 708, 94 S.Ct., at 3107.
195
President Lyndon Johnson expressed the historic view of Presidential confidentiality in even stronger terms in a letter to the GSA Administrator: '(S)ince the President . . . is the recipient of many confidences from others, and since the inviolability of such confidence is essential to the functioning of the constitutional office of the Presidency, it will be necessary to withhold from public scrutiny certain papers and classes of papers for varying periods of time. Therefore . . . I hereby reserve the right to restrict the use and availability of any materials . . . for such time as I in my sole discretion, may . . . specify . . ..' Hearing before a Subcommittee of the House Committee on Government Operations, on H.J.Res. 632, 89th Cong., 1st Sess., 17 (1965).
196
As a constitutionally based prerogative, Presidential privilege inures to the President himself; it is personal in the same sense as the privilege against compelled self-incrimination. Presidential privilege would therefore be largely illusory unless it could be interposed by the President against the countless thousands of persons in the Executive Branch, and most certainly if the executive officials are acting, as this statute contemplates, at the command of a different branch of Government.14
197
This statute requires that persons not designated or approved by the former President will review all Presidential papers. Even if the Government agents, in culling through the materials, follow the 'advisory' suggestions offered by the District Court, the fact remains that their function abrogates the Presidential privilege. Congress has, in essence, commanded them to review and catalog thousands of papers and recordings that are undoubtedly privileged. Given that fact, it is clear that the Presidential privilege of one occupant of that office will have been rendered a nullity.15
E
198
There remains another inquiry under the issue of separation of powers. Does the fact that the Act applies only to a former President, described as 'a legitimate class of one,' ante, at 472, after he has left office, justify what would otherwise be unconstitutional if applicable to an incumbent President?
199
On the face of it, congressional regulation of the papers of a former President obviously will have less disruptive impact on the operations of an incumbent President than an effort at regulation or control over the same papers of an incumbent President. But this 'remoteness' does not eliminate the separation-of-powers defects. First, the principle that a President must be free from coercion should apply to a former President, so long as Congress is inquiring or acting with respect to operations of the Government while the former President was in office.16
200
To the extent Congress is empowered to coerce a former President, every future President is at risk of denial of a large measure of the autonomy and independence contemplated by the Constitution and of the confidentiality attending it. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). Indeed, the President, if he is to have autonomy while in office, needs the assurance that Congress will not immediately be free to coerce him to open all his files and records and give an account of Presidential actions at the instant his successor is sworn in.17 Absent the validity of the expectation of privacy of such papers (save for a subpoena under United States v. Nixon), future Presidents and those they consult will be well advised to take into account the possibility that their most confidential correspondence, workpapers, and diaries may well be open to congressionally mandated review, with no time limit, should some political issue give rise to an interbranch conflict.
The Need for Confidentiality
201
The consequences of this development on what a President expresses to others in writing and orally are incalculable; perhaps even more crucial is the inhibiting impact on those to whom the President turns for information and for counsel, whether they are officials in the Government, business or labor leaders, or foreign diplomats and statesmen. I have little doubt that Title I and the Court's opinion will be the subject of careful scrutiny and analysis in the foreign offices of other countries whose representatives speak to a President on matters they prefer not to put in writing, but which may be memorialized by a President or an aide. Similarly, Title I may well be a 'ghost' at future White House conferences, with conferees choosing their words more cautiously because of the enlarged prospect of compelled disclosure to others. A unanimous Court carefully took this into account in United States v. Nixon:
202
'The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making.' 418 U.S., at 708, 94 S.Ct., at 3107.
203
In this same vein, Mr. Justice POWELL argues that President Carter's representation to the Court through the Solicitor General that Title I enhances the efficiency of the Executive Branch is dispositive of appellant's separation-of-powers claim. This deference to the views of one administration, expressed approximately 100 days after its inception, as to the permanent structure of our Government is not supported by precedent and conflicts with 188 years of history. First, there is no principled basis for limiting this unique deference. If and when the one-House veto issue, for example, comes before us, are we to accept the opinion of the Department of Justice as to the effects of that legislative device on the Executive Branch's operations? Second, if Title I is thus efficacious, why did the President who signed this bill into law decide to establish a Presidential library in Ann Arbor, Mich., rather than turn all of his Presidential materials over to GSA for screening and retention in Washington, D.C., where the materials would be readily accessible to officials of the Executive Branch? And why, suddenly, is Congress' acquiescence in President Ford's actions consistent with the supposed foundation of Title I?
204
Third, as pointed out by Mr. Justice BLACKMUN, ante, at 491: 'Political realities often guide a President to a decision not to veto' or, indeed, a decision not to challenge in court the actions of Congress. See n. 18, infra. Finally, it is perhaps not inappropriate to note that, on occasion, Presidents disagree with their predecessors on issues of policy. Some have believed in 'Congressional Government'; others adhered to expansive notions of Presidential power. It is, I respectfully submit, a unique idea that this Court accept as controlling the representations of any administration on a constitutional question going to the permanent structure of Government.
205
Title I is also objectionable on separation-of-powers grounds, despite its applicability only to a former President, because compelling the disposition of all of a former President's papers is a legislative exercise of what have historically been regarded as executive powers. Presidential papers do not, after all, instantly lose their nature quadrennially at high noon on January 20. Moreover, under Title I it is now the Congress, not the incumbent President,18 that has decided what to do with all the papers of one entire administration.
206
Finally, the federal appellees concede that Presidential privilege, a vital incident of our separation-of-powers system, does not terminate instantly upon a President's departure from office. They candidly acknowledge that 'the privilege survives the individual President's tenure,' Brief for Federal Appellees 33, because of the vital public interests underlying the privilege. This principle, as all parties concede, finds explicit support in history; former President Truman in 1953 refused to provide information to the Congress on matters occurring during his administration, advising Congress:
207
'It must be obvious to you that if the doctrine of separation of powers and the independence of the Presidency is to have any validity at all, it must be equally applicable to a President after his term of office has expired when he is sought to be examined with respect to any acts occurring while he (was) President.' 120 Cong.Rec. 33419 (1974). (Emphasis supplied.)19
208
To ensure institutional integrity and confidentiality, Presidents and their advisers must have assurance, as do judges and Members of Congress, that their internal communications will not become subject to retroactive legislation mandating intrusions into matters as to which there was a well-founded expectation of privacy when the communications took place. Just as Mr. Truman rejected congressional efforts to inquire of him, after he left office, as to his activities while President, this Court has always assumed that the immunity conferred by the Speech or Debate Clause is available to a Member of Congress after he leaves office. United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). It would therefore be illogical to conclude that the President loses all immunity from legislative coercion as to his Presidential papers from the moment he leaves office.
209
The Court correctly concedes that a former President retains the Presidential privilege after leaving office, ante, at 448-449; but it then concludes that several considerations cut against recognition of the privilege as to one former President. First, the Court places great emphasis on the fact that neither President Ford nor President Carter 'supports appellant's claim . . ..' Ante, at 449. The relevance of that fact is not immediately clear. The validity of one person's constitutional privilege does not depend on whether some other holder of the same privilege supports his claim.20 The fact that an incumbent President has signed or supports a particular measure cannot defeat a former President's claim of privilege. If the Court is correct today, it was wrong one year ago in Buckley v. Valeo, when we unanimously held that Presidential approval of the Federal Election Campaign could not validate an unconstitutional invasion of Presidential appointing authority.
210
Second, the Court suggests that many of the papers are unprivileged. Of the great volume of pages, appellant estimated that he saw only about 200,000 items while he was President. Several points are relevant in this regard. We do not know how many pages the 200,000 items represent; the critical factor is that all papers are presumptively privileged. Regardless of the number of pages, the fact remains that the 200,000 items that the President personally reviewed or prepared while in office obviously have greater historical value than the mass of routine papers coming to the White House. Mountains of Government reports tucked away in Presidential files will not likely engage the interest of archivists or historians, since most such reports are not historically important and are, in any event, available elsewhere. Rather, archivists and historians will want to find and preserve the materials that reflect the President's internal decisionmaking processes. Those are precisely the papers which will be subjected to the most intensive review and which have always been afforded absolute protection. The Court's analytically void invocation of sheer numbers cannot mask the fact that the targets of the review are privileged papers, diaries, and conversations.
211
I agree that, under United States v. Nixon, the Presidential privilege is qualified. From that premise, however, the Court leaps to the conclusion that future regulations governing public access to the materials are sufficient to protect that qualified privilege. The Act does indeed provide for a number of safeguards before the public at large obtains access to the materials. See § 104(a). But the Court cannot have it both ways. The opinion expressly recognizes again and again that public access is not now the issue. The constitutionality of a statute cannot rest on the presumed validity of regulations not yet issued; moreover, no regulations governing public access can remedy the statute's basic flaw of permitting Congress to seize the confidential papers of a President.
F
212
In concluding that Title I on its face violates the principle of separation of powers, I do not address the issue whether some circumstances might justify legislation for the disposition of Presidential papers without the President's consent. Here, nothing remotely like the particularized need we found in United States v. Nixon has been shown with respect to these Presidential papers. No one has suggested that Congress will find its own 'core' functioning impaired by lack of the impounded papers, as we expressly found the judicial function would be impaired by lack of the material subpoenaed in United States v. Nixon.
213
I leave to another day the question whether, under exigent circumstances, a narrowly defined congressional demand for Presidential materials might be justified. But Title I fails to satisfy either the required narrowness demanded by United States v. Nixon or the requirement that the coequal powers of the Presidency not be injured by congressional legislation.
II
Privacy
214
The discussion of separation of powers concerns, of course, the structure of government, not the rights of the sole individual ostensibly affected by this legislation. But Title I touches not only upon the independence of a coordinate branch of government, it also affects, in the most direct way, the basic rights of one named individual. The statute provides, as we have seen, for governmental custody over and review of all of the former President's written and recorded materials at the time he left office, including diary recordings and conversations in his private residences outside Washington, D. C. § 101(a) (2).
215
The District Court was deeply troubled by this admittedly unprecedented intrusion. Its opinion candidly acknowledged that the personal-privacy claim was the 'most troublesome' point raised by this unique statute.21 In addition to communications and memoranda reflecting the President's confidential deliberations, the District Court admitted that the materials subject to GSA review included highly personal communications.
216
'Among all of the papers and tape recordings falling within the Act, however, are some papers and materials containing extremely private communications between (Mr. Nixon) and, among others, his wife, his daughters, his physician, lawyer, and clergyman, and his close friends, as well as personal diary dictabelts and his wife's personal files . . . Segregating those that are private from those that are not private requires rather comprehensive screening, and archivists entrusted with that duty will be required to read or listen to private communications.' 408 F.Supp. 321, 359 (DC 1976).
A.
217
Given this admitted intrusion, the legislation before us must be subjected to the most searching kind of judicial scrutiny.22 Statutes that trench on fundamental liberties, like those affecting significantly the structure of our government, are not entitled to the same presumption of constitutionality we normally accord legislation. Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977). The burden of justification is reversed; the burden rests upon government, not on the individual whose liberties are affected, to justify the measure. Abood v. Detroit Board of Education, 431 U.S. 209, 263-264, 97 S.Ct. 1782, 1813-1814, 52 L.Ed.2d 261 (1977) (Powell, J., concurring in the judgment). We recently reaffirmed the standard or review in such cases as one of 'exacting scrutiny.'
218
'We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest . . . (W)e have required that the subordinating interests of the State must survive exacting scrutiny.' Buckley v. Valeo, 424 U.S., at 64, 96 S.Ct., at 656.
B
219
Constitutional analysis must, of course, take fully into account the nature of the Government's interests underlying challenged legislation. Once those interests are identified, we must then focus on the nature of the individual interests affected by the statute. Id., at 96 S.Ct., at 632. Finally, we must decide whether the Government's interests are of sufficient weight to subordinate the individual's interests, and, if so, whether the Government has nonetheless employed unnecessarily broad means for achieving its purposes. Lamont v. Postmaster General, 381 U.S. 301, 310, 85 S.Ct. 1493, 1498, 14 L.Ed.2d 398 (1965) (Brennan, J., concurring).
220
Two governmental interests are asserted as the justification for this statute: to ensure the general efficiency of the Executive Branch's operations23 and to preserve historically significant papers and tape recordings for posterity.24 Both these purposes are legitimate and important. Yet, there was no serious suggestion by Congress that the operations of the Executive Branch would actually be impaired unless, contrary to nearly 200 years' past practice, all Presidential papers of the one named incumbent were required by law to be impounded in the sole control of Government agents. The statute on its face, moreover, does not purport to address a particularized need, such as the need to secure Presidential papers concerning the Middle East, the SALT talks, or problems in Panama.25 Indeed, the congressionally perceived 'need' is a far more 'generalized need' than that rejected in United States v. Nixon by a unanimous Court.
221
As to the interest in preserving historical materials, there is nothing whatever in our national experience to suggest that existing mechanisms, such as the 20-year-old Presidential Libraries Act, were insufficient to achieve that purpose.26 In any event, the interest in preserving 'historical materials' cannot justify seizing, without notice or hearing, private papers preliminary to a line-by-line examination by Government agents.
222
In contrast to Congress' purposes underlying the statute, this Act intrudes significantly on two areas of traditional privacy interests of Presidents. One embraces Presidential papers relating to his decisions, development of policies, appointments, and communications in his role as leader of a political party; the other encompasses purely private matters of family, property, investments, diaries, and intimate conversations. Both interests are of the highest order, with perhaps some primacy for family papers.27 Cf. Moore v. City of East Cleveland, supra, 431 U.S., at 499, 97 S.Ct., at 1935-1936.
223
Title I thus touches directly on what Mr. Justice Powell once referred to as the 'intimate areas of an individual's personal affairs,' California Bankers Assn. v. Shultz, 416 U.S. 21, 78, 94 S.Ct. 1494, 1526, 39 L.Ed.2d 812 (1974) (concurring opinion). The papers in both of these areas family and political decisionmaking are of the most private nature, enjoying the highest status under our law. Mr. Justice Brennan recently put it this way: 'Personal letters constitute an integral aspect of a person's private enclave.' Fisher v. United States, 425 U.S. 391, 427, 96 S.Ct. 1569, 1588, 48 L.Ed.2d 39 (1976) (concurring in judgment). An individual's papers, he said, are 'an extension of his person.' Id., at 420, 96 S.Ct., at 1585. Mr. Justice Marshall made the same point: 'Diaries and personal letters that record only their author's personal thoughts lie at the heart of our sense of privacy.' Couch v. United States, 409 U.S. 322, 350, 93 S.Ct. 611, 626, 34 L.Ed.2d 548 (1973) (dissenting opinion). In discussing private papers, he referred even more emphatically to the 'deeply held belief on the part of the Members of this Court throughout its history that there are certain documents no person ought to be compelled to produce at the Government's request.' Fisher v. United States, supra, 425 U.S., at 431-432, 96 S.Ct., at 1591 (emphasis supplied) (concurring in judgment). This echoes Lord Camden's oft-quoted description of personal papers as a man's 'dearest property.' Boyd v. United States, 116 U.S. 616, 628, 6 S.Ct. 524, 531, 29 L.Ed. 746 (1886).
224
One point emerges clearly: The papers here involve the most fundamental First and Fourth Amendment interests. Since the Act asserts exclusive Government custody over all papers of a former President, the Fourth Amendment's prohibition against unreasonable searches and seizures is surely implicated.28 Indeed, where papers or books are the subject of a government intrusion, our cases uniformly hold that the Fourth Amendment prohibition against a general search requires that warrants contain descriptions reflecting 'the most scrupulous exactitude . . .,' Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965). Those cases proscribe general language in a warrant or a statute of 'indiscriminate sweep . . ..' Id., at 486, 85 S.Ct., at 512. Title I, commanding seizure followed by permanent control of all materials having 'historical or commemorative value,' evidences the 'indiscriminate sweep' we have long denounced. This 'broad broom' statute provides virtually no standard at all to guide the Government agents combing through the papers; the agents are left to roam at large through confidential materials, something to which no other President and no Member of Congress or of the Judicial Branch has been subjected.
225
The Court, while recognizing that Government agents will necessarily be reviewing the most private kinds of communications covering a period of five and one-half years, tells us that Stanford is inapposite. Several reasons are given. The Court suggests that, unlike the instant case, the seizure in Stanford included vast quantities of materials unrelated to any legitimate government objective; in addition, the Stanford intrusion constituted an invasion of the home in connection with a criminal investigation. That last consideration relied on by the Court can be disposed of quickly, for by its terms, just as in Stanford, Title I commands seizure and review of papers from appellant's private residences within and outside Washington, D. C., § 101(a), for the purpose, among others, of criminal proceedings brought by the Special Prosecutor, § 102(b), and to make the materials available more broadly 'for use in judicial proceedings.' § 104(a)(2). Title I is not needed for this purpose, since a narrowly defined subpoena can accomplish those purposes under United States v. Nixon. Title I is in effect a 'legislative warrant' reminiscent of the odious general warrants of the colonial era.
226
As to the Court's first consideration, its 'quantity' test is fallacious. The intrusion in Stanford was unlawful not because the State had an interest in only part of many items in Stanford's home, but rather because the warrant failed to describe the objects of seizure with the 'most scrupulous exactitude.' Stanford is not a 'numbers' test, the protection of which vanishes if unprotected materials outnumber protected materials; it is, rather, a test designed to ensure that protected materials are not seized at all. Title I on its face commands that protected materials be seized wherever found including the private residences mentioned reviewed, and returned only if the Government agents decide that certain protected materials lack historical significance. The Act plainly accomplishes exactly what Stanford expressly forbids.
227
In addition to Fourth Amendment considerations, highly important First Amendment interests pervade all Presidential papers, since they include expressions of privately held views about politics, diplomacy, or people of all walks of life, within and outside this country. Appellant's freedom of association is also implicated, since his recordings and papers will likely reveal much about his relationships with both individuals and organizations. In NAACP v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171-1172, 2 L.Ed.2d 1488 (1958), the Court said:
228
'This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.'
229
Accordingly, in passing on a statute compelling disclosure of political contributions, the Court, in Buckley v. Valeo, imposed the strict standard of 'exacting scrutiny' because of the significant impact on First Amendment rights.
230
The fact that the former President was an important national and world political figure obviously does not diminish the traditional privacy interest in his papers. Forced disclosure of private information, even to Government officials, is by no means sanctioned by this Court's decisions, except for the most compelling reasons. Cf. Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). I do not think, for example, that this Court would readily sustain, as a condition to holding public office, a requirement that a candidate reveal publicly membership in every organization whether religious, social, or political. After all, our decision in NAACP v. Alabama, supra, was presumably intended to protect from compelled disclosure members of the organization who were actively involved in public affairs or who held public office in Alabama.
231
The Court's reliance on Whalen v. Roe, supra, in rejecting appellant's privacy claim is surprising. That case dealt with the State's undoubted police power to regulate dispensing of dangerous drugs, the very use or possession of which the State could forbid. 429 U.S., at 603, and 597 n. 20, 97 S.Ct., at 878 and 875 n. 20. Hence, we had no difficulty whatever in reaching a unanimous holding that the public interest in regulating dangerous drugs outweighed any privacy interest in reporting to the State all prescriptions, those reports being made confidential by statute. No personal, private business, or political confidences were involved.
C
232
In short, a former President up to now has had essentially the same expectation of privacy with respect to his papers and records as every other person. This expectation is soundly based on two factors: first, under our constitutional traditions, Presidential papers have been, for more than 180 years, deemed by the Congress to belong to the President. Congress ratified this tradition by specific Acts: (a) congressional appropriations following authorization to purchase Presidential papers; (b) congressional enactment of a nonmandatory system of Presidential libraries; and (c) statutes permitting, until 1969, a charitable-contribution deduction for papers of Presidents donated to the United States or to nonprofit institutions.
233
Second, in the absence of any legislation to the contrary, there was no reason whatever for a President to take time from his official duties to ensure that there was no 'commingling' of 'public' and 'private' papers. Indeed, the fact that the former President commingled Presidential and private family papers, absent any then-existing laws to the contrary, points strongly to the conclusion that he did in fact have an expectation of privacy with respect to both categories of papers.
234
On the basis of this Court's holdings, I cannot understand why the former President's privacy interests do not outweigh the generalized, undifferentiated goals sought to be achieved by Title I. Without a more carefully defined focus, these legislative goals do not represent 'paramount Government interests,' nor is this particular piece of legislation needed to achieve those goals, even if we assume, arguendo, that they are of a 'compelling' or 'overriding' nature. But even if other Members of the Court strike the balance differently, the Government has nonetheless failed to choose narrowly tailored means of carrying out its purposes so as not unnecessarily to invade important First and Fourth Amendment liberties. The Court demanded no less in Buckley v. Valeo, and nothing less will do here. Cf. Hynes v. Mayor of Borough of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243 (1976).
235
The federal appellees point to two factors as mitigating the effects of this admitted intrusion: first, in their view, most of the President's papers and conversations relate to the business of Government, rather than to personal, family, or political matters; second, it is said that the intrusion is limited as much as possible, since the review will be carried out by specially trained Government agents.
236
Even accepting the Government's interest in identifying and preserving governmentally related papers in order to preserve them for historical purposes, that interest cannot justify a seizure and search of all the papers taken here. Since compulsory review of personal and family papers and tape recordings is an admittedly improper invasion of privacy, no constitutional principle justifies an intrusion into indisputably protected areas in order to carry out the 'generalized' statutory objectives.
237
Second, the intrusion cannot be saved by the credentials, however impeccable, of the Government agents. The initial problem with this justification is that no one knows whether these agents are, as the federal appellees contend, uniformly discreet. Despite the lip service paid by the District Court and appellees to the record of archivists generally, there is nothing before us to justify the conclusion that each of the more than 100 persons who apparently will have access to, and will monitor and examine, the materials is indeed reliably discreet.
238
The Act, furthermore, provides GSA with no meaningful standards to minimize the extent of intrusions upon appellant's privacy. We are thus faced with precisely the same standardless discretion vested in governmental officials which this Court has unhesitatingly struck down in other First Amendment areas. See, e.g., Hynes v. Mayor of Borough of Oradell, supra. In the absence of any meaningful statutory standards, which might help secure the privacy interests at stake, I question whether we can assume, as a matter of law, that Government agents will be able to formulate for themselves constitutionally valid standards of review in examining, segregating, and cataloging the papers of the former President.
239
Nor does the possibility that, had Title I not been passed, appellant would perhaps use Government specialists to help classify and catalog his papers eliminate the objections to this intrusion. Had appellant, like all his recent predecessors, been permitted to deposit his papers in a Presidential library, Government archivists would have been working directly under appellant's guidance and direction, not solely that of Congress or GSA. He, not Congress, would have established standards for preservation, to ensure that his privacy would be protected. Similarly, he would have been able to participate personally in the reviewing process and could thus assure that any governmental review of purely personal papers was minimized or entirely eliminated. He, not Congress, would have controlled the selection of which experts, if any, would have access to his papers. Finally, and most important, the 'intrusion' would have been consented to, eliminating any constitutional question. But the possibility of a consent intrusion cannot, under our law, justify a nonconsensual invasion. Actual consent is required, cf. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), not the mere possibility of consent under drastically different circumstances.
240
Finally, even if the Government agents are completely discreet, they are still Government officials charged with reviewing highly private papers and tape recordings. Unless we are to say that a police seizure and examination of private papers is justified by the 'impeccable' record of a discreet police officer, I have considerable difficulty understanding how a compulsory review of admittedly private papers, in which there is no conceivable Governmental interest, by Government agents is constitutionally permissible.
III
Bill of Attainder
A.
241
Under Art. I, § 9, cl. 3, as construed and applied by this Court since the time of Mr. Chief Justice Marshall, Title I violates the Bill of Attainder Clause. In contrast to Title II of Pub.L. 93-526, the Public Documents Act, which establishes a National Study Commission to study questions concerning the preservation of records of all federal officials, Title I commands the Administrator to seize all tape recordings 'involv(ing) former President Richard M. Nixon' and all 'Presidential historical materials of Richard M. Nixon. . . .' §§ 101(a)(1), (b)(1). By contrast with Title II, which is general legislation, Title I is special legislation singling out one individual as the target.
242
Although the prohibition against bills of attainder has been addressed only infrequently by this Court, it is now settled beyond dispute that a bill of attainder, within the meaning of Art. I, is by no means the same as a bill of attainder at common law. The definition departed from the common-law concept very early in our history, in a most fundamental way. At common law, the bill was a death sentence imposed by legislative Act. Anything less than death was not a bill of attainder, but was, rather, 'a bill of pains and penalties.' This restrictive definition was recognized tangentially in Marbury v. Madison, 1 Cranch 137, 179, 2 L.Ed. 60 (1803),29 but the Court soon thereafter rejected conclusively any notion that only a legislative death sentence or even incarceration imposed on named individuals fell within the prohibition. Mr. Chief Justice Marshall firmly settled the matter in 1810, holding that legislative punishment in the form of a deprivation of property was prohibited by the Bill of Attainder Clause:
243
'A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.' Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162. (Emphasis supplied.)
244
The same point was made 17 years later in Ogden v. Saunders, 12 Wheat. 213, 286, 6 L.Ed. 606, where the Court stated:
245
'By classing bills of attainder, ex post facto laws, and laws impairing the obligation of contracts together, the general intent becomes very apparent; it is a general provision against arbitrary and tyrannical legislation over existing rights, whether of person or property.' (Emphasis supplied.)
246
More than 100 years ago this Court struck down statutes which had the effect of preventing defined categories of persons from practicing their professions. Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356 (1867) (a priest); Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366 (1867) (a lawyer). Those two cases established more broadly that 'punishment' for purposes of bills of attainder is not limited to criminal sanctions; rather, '(t)he deprivation of any rights, civil or political, previously enjoyed, may be punishment . . ..' Cummings, supra, at 320.
247
Mr. Chief Justice Warren pointed out that the Constitution, in prohibiting bills of attainder, did not envision 'a narrow, technical (and therefore soon to be outmoded) prohibition . . ..' United States v. Brown, 381 U.S. 437, 442, 85 S.Ct. 1707, 1711, 14 L.Ed.2d 484 (1965). To the contrary, the evil was a legislatively imposed deprivation of existing rights, including property rights, directed at named individuals. Mr. Justice Black, in United States v. Lovett, 328 U.S. 303, 315-316, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252 (1946), stated:
248
'(The cases) stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.' (Emphasis supplied.)
249
The only 'punishment' in Lovett, in fact, was the deprivation of Lovett's salary as a Government employee an indirect punishment for his 'bad' associations.
250
Under our cases, therefore, bills of attainder require two elements: first, a specific designation of persons or groups as subjects of the legislation, and, second, a Garland-Cummings-Lovett-Brown-type arbitrary deprivation, including deprivation of property rights, without notice, trial, or other hearing.30 No one disputes that Title I suffers from the first infirmity, since it applies only to one former President. The issue that remains is whether there has been a legislatively mandated deprivation of an existing right.
B
251
Since George Washington's Presidency, our constitutional tradition, without a single exception, has treated Presidential papers as the President's personal property. This view has been congressionally and judicially ratified, both as to the ownership of Presidential papers, Folsom v. Marsh, 9 Fed.Cas. 342 (Mo. 4, 901) (CC Mass.1841) (Story, J., sitting as Circuit Justice), and, by the practice of Justices as to ownership of their judicial papers.
252
Congress itself has consistently legislated on this assumption. I have noted earlier that appropriation legislation has been enacted on various occasions providing for Congress' purchase of Presidential papers. See Hearing before a Special Subcommittee of the House Committee on Government Operations on H. J. Res. 330, 84th Cong., 1st Sess., 28 (1955). Those hearings led Congress to establish a nonmandatory system of Presidential libraries, again explicitly recognizing that Presidential papers were the personal property of the Chief Executive. In the floor debate on that measure, Congressman John Moss, a supporter of the legislation, stated: 'Finally, it should be remembered that Presidential papers belong to the President . . ..' 101 Cong.Rec.9935 (1955). Indeed, in 1955 in testimony pertaining to this proposed legislation, the Archivist of the United States confirmed:
253
'The papers of the Presidents have always been considered to be their personal property, both during their incumbency and afterward. This has the sanction of law and custom and has never been authoritatively challenged.' Hearing on H. J. Res. 330, supra, at 32.
254
Similarly, the GSA Administrator testified:
255
'As a matter of ordinary practice, the President has removed his papers from the White House at the end of his term. This has been in keeping with the tradition and the fact that the papers are the personal property of the retiring Presidents.' Id., at 14. (Emphasis supplied.)
256
In keeping with this background, it was not surprising that the Attorney General stated in an opinion in September 1974:
257
'To conclude that such materials are not the property of former President Nixon would be to reverse what has apparently been the almost unvaried understanding of all three branches of the Government since the beginning of the Republic, and to call into question the practices of our Presidents since the earliest times.' 43 Op.Atty.Gen. No. 1, pp. 1-2 (1974).
258
I see no escape, therefore, from the conclusion that, on the basis of more than 180 years' history, the appellant has been deprived of a property right enjoyed by all other Presidents after leaving office, namely, the control of his Presidential papers.
259
Even more starkly, Title I deprives only one former President of the right vested by statute in other former Presidents by the 1955 Act the right to have a Presidential library at a facility of his own choosing for the deposit of such Presidential papers as he unilaterally selects. Title I did not purport to repeal the Presidential Libraries Act; that statute remains in effect, available to present and future Presidents, and has already been availed of by former President Ford. The operative effect of Title I, therefore, is to exclude, by name, one former President and deprive him of what his predecessors and his successor have already been allowed. This invokes what Mr. Justice Black sain in Lovett, supra could not be constitutionally done:
260
'Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.' 328 U.S., at 317, 66 S.Ct., at 1079-1080. (Emphasis supplied.)
261
But apart from Presidential papers generally, Title I on its face contemplates that even the former President's purely family and personal papers and tape recordings are likewise to be taken into custody for whatever period of time is required for review. Some items, such as the originals of tape recordings of the former President's conversations, will never be returned to him under the Act.
262
I need not, and do not, inquire into the motives of Congress in imposing this deprivation on only one named person. Our cases plainly hold that retribution and vindictiveness are not requisite elements of a bill of attainder. The Court appears to overlook that Mr. Chief Justice Warren in United States v. Brown, supra, concluded that retributive motives on the part of Congress were irrelevant to bill-of-attainder analysis. To the contrary, he said flatly: 'It would be archaic to limit the definition of punishment to 'retribution." Indeed, he expressly noted that bills of attainder had historically been enacted for regulatory or preventive purposes:
263
'Historical considerations by no means compel restriction of the bill of attainder ban to instances of retribution. A number of English bills of attainder were enacted for preventive purposes that is, the legislature made a judgment, undoubtedly based largely on past acts and associations . . . that a given person or group was likely to cause trouble . . . and therefore inflicted deprivations upon that person or group in order to keep it from bringing about the feared event.' 381 U.S., at 458-459, 85 S.Ct., at 1720.
264
Under the long line of our decisions, therefore, the Court has the heavy burden of demonstrating that legislation which singles out one named individual for deprivation without any procedural safeguards of what had for nearly 200 years been treated by all three branches of Government as private property, can survive the prohibition of the Bill of Attainder Clause. In deciding this case, the Court provides the basis for a future Congress to enact yet another Title I, directed at some future former President, or a Member of the House or the Senate because the individual has incurred public disfavor and that of the Congress. Cf. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). As in United States v. Brown, Title I, in contrast to Title II, does 'not set forth a generally applicable rule,' 381 U.S., at 450, 85 S.Ct., at 1715; it is beyond doubt special legislation doing precisely the evil against which the prohibitions of the 'bills of attainder, ex post facto laws, and laws impairing the obligation of contracts . . .' were aimed. Ogden v. Saunders, 12 Wheat., at 286.
265
The concurring opinions make explicit what is implicit throughout the Court's opinion, i. e., (a) that Title I would be unconstitutional under separation-of-powers principles if it applied to any other President; (b) that the Court's holding rests on appellant's being a 'legitimate class of one,' ante, at 472; and (c) that the Court's holding 'will not be a precedent.' Ante, p. 486.
266
Nothing in our cases supports the analysis or Mr. Justice STEVENS, ibid., Under his view, appellant's resignation and subsequent acceptance of a pardon set him apart as a "legitimate class of one." The two events upon which he relies, however, are beside the point. Correct analysis under the Bill of Attainder Clause focuses solely upon the nature of the measure adopted by Congress, not upon the actions of the target of the legislation. Even if this approach were analytically sound, the two events singled out are relevant only to two possible theories: first, that appellant is culpably deserving of punishment by virtue of his resignation and pardon; or second, that appellant's actions were so unique as to justify legislation confiscating his Presidential materials but not those of any other President. The first point can be disposed of quickly, since the Bill of Attainder Clause was, of course, intended to prevent legislatively imposed deprivations of rights upon persons whom the Legislature thought to be culpably deserving of punishment.
267
The remaining question, then, is whether appellant's 'uniqueness' permits individualized legislation of the sort passed here. It does not. The point is not that Congress is powerless to act as to exigencies arising during or in the immediate aftermath of a particular administration; rather, the point is that Congress cannot punish a particular individual on account of his 'uniqueness.' If Congress had declared forfeited appellant's retirement pay to which he otherwise would be entitled, instead of confiscating his Presidential materials, it would not avoid the bill-of-attainder prohibition to say that appellant was guilty of unprecedented actions setting him apart from his predecessors in office. In short, appellant's uniqueness does not justify serious deprivations of existing rights, including the statutory right abrogated by Title I to establish a Presidential library.
268
The novel arguments advanced in the several concurring opinions serve to emphasize how clearly Title I violates the Bill of Attainder Clause; Mr. Justice STEVENS although finding no violation of the Clause, admirably states the case which, for me, demonstrates the unconstitutionality of Title I:
269
'The statute before the Court does not apply to all Presidents or former Presidents. It singles out one, by name, for special treatment. Unlike all former Presidents in our history, he is denied custody of his own Presidential papers; he is subjected to the burden of prolonged litigation over the administration of the statute; and his most private papers and conversations are to be scrutinized by Government archivists. The statute implicitly condemns him as an unreliable custodian of his papers. Legislation which subjects a named individual to this humiliating treatment must raise serious questions under the Bill of Attainder Clause.' Ante, at 484.
IV
270
The immediate consequences of the Court's holding may be discounted by some on the ground it is justified by the uniqueness of the circumstances in short, that the end justifies the means and that, after all, the Court's holding is really not to be regarded as precedent. Yet the reported decisions of this Court reflect other instances in which unique situations confronted the Judicial Branch for example, the alleged treason of one of Founding Fathers. United States v. Burr, 25 F.Cas. 187 (No. 14,694) (CC Va.1807). Burr may or may not have been blameless; Father Cummings and Lawyer Garland, in common with hundreds of thousands of others, may have been technically guilty of 'carrying on rebellion' against the United States. But this Court did not weigh the culpability of Cummings, Garland, or of Lovett or Brown in according to each of them the full measure of the protection guaranteed by the literal language of the Constitution. For nearly 200 years this Court has not viewed either a 'class' or a 'class of one' as 'legitimate' under the Bill of Attainder Clause.
271
It may be, as three Justices intimate in their concurring opinions, that today's holding will be confined to this particular 'class of one'; if so, it may not do great harm to our constitutional jurisprudence but neither will it enhance the Court's credit in terms of adherence to stare decisis. Only with future analysis, in perspective, and free from the 'hydraulic pressure' Holmes spoke of, will we be able to render judgment on whether the Court has today enforced the Constitution or eroded it.
272
Mr. Justice REHNQUIST, dissenting.
273
Appellant resigned the Office of the Presidency nearly three years ago, and if the issue here were limited to the right of Congress to dispose of his particular Presidential papers, this case would not be of major constitutional significance. Unfortunately, however, today's decision countenances the power of any future Congress to seize the official papers of an outgoing President as he leaves the inaugural stand. In so doing, it poses a real threat to the ability of future Presidents to receive candid advice and to give candid instructions. This result, so at odds with our previous case law on the separation of powers, will daily stand as a veritable sword of Damocles over every succeeding President and his advisers. Believing as I do that the Act is a clear violation of the constitutional principle of separation of powers, I need not address the other issues considered by the Court.1
274
My conclusion that the Act violates the principle of separation of powers is based upon three fundamental propositions. First, candid and open discourse among the President, his advisers, foreign heads of state and ambassadors, Members of Congress, and the others who deal with the White House on a sensitive basis is an absolute prerequisite to the effective discharge of the duties of that high office. Second, the effect of the Act, and of this Court's decision upholding its constitutionality, will undoubtedly restrain the necessary free flow of information to and from the present President and future Presidents. Third, any substantial intrusion upon the effective discharge of the duties of the President is sufficient to violate the principle of separation of powers, and our prior cases do not permit the sustaining of an Act such as this by 'balancing' an intrusion of substantial magnitude against the interests assertedly fostered by the Act.
275
With respect to the second point, it is of course true that the Act is directed solely at the papers of former President Nixon.2 Although the terms of the Act, therefore, have no direct application to the present occupant or future occupants of the Office, the effect upon candid communication to and from these future Presidents depends, in the long run, not upon the limited nature of the present Act, but upon the precedential effect of today's decision. Unless the authority of Congress to seize the papers of this appellant is limited only to him in some principled way, future Presidents and their advisers will be wary of a similar Act directed at their papers out of pure political hostility.
276
We are dealing with a privilege, albeit a qualified one, that both the Court and the Solicitor General concede may be asserted by an ex-President. It is a privilege which has been relied upon by Chief Executives since the time of George Washington. See, e. g., the dissenting opinion of THE CHIEF JUSTICE, ante, at 509-510. Unfortunately, the Court's opinion upholding the constitutionality of this Act is obscure, to say the least, as to the circumstances that will justify Congress in seizing the papers of an ex-President.3 A potpourri of reasons is advanced as to why the Act is not an unconstitutional infringement upon the principle of separation of powers,4 but the weight to be attached to any of the factors is left wholly unclear.
277
The Court speaks of the need to establish procedures to preserve Presidential materials, to allow a successor President access to the papers of the prior President, to grant the American public historical access, and to rectify the present 'hit-or-miss' approach by entrusting the materials to the expert handling of the archivists. Ante, at 452-453. These justifications are equally applicable to each and every future President, and other than one cryptic paragraph, ante, at 453-454, the Court's treatment contains no suggestion that Congress might not permissibly seize the papers of any outgoing future President. The unclear scope of today's opinion will cause future Presidents and their advisers to be uneasy over the confidentiality of their communications, thereby restraining those communications.
278
The position of my Brothers POWELL and BLACKMUN is that today's opinion will not result in an impediment to future Presidential communications since this case is 'unique'5 appellant resigned in disgrace from the Presidency during events unique in the history of our Nation. Mr. Justice POWELL recognizes that this position is quite different from that of the Court. Ante, at 492-498. Unfortunately his concurring view that the authority of Congress is limited to the situation he describes does not itself change the expansive scope of the Court's opinion, and will serve as scant consolation to future Presidential advisers. For so long as the Court's opinion represents a threat to confidential communications, the concurrences of Mr. Justice POWELL and Mr. Justice BLACKMUN, I fear, are based on no more than wishful thinking.
279
Were the Court to advance a principled justification for affirming the judgment solely on the facts surrounding appellant's fall from office, the effect of its decision upon future Presidential communications would be far less serious. But the Court does not advance any such justification.
A.
280
It would require far more of a discourse than could profitably be included in an opinion such as this to fully describe the pre-eminent position that the President of the United States occupies with respect to our Republic. Suffice it to to say that the President is made the sole repository of the executive powers of the United States, and the powers entrusted to him as well as the duties imposed upon him are awesome indeed.6 Given the vast spectrum of the decisions that confront him Domestic affairs, relationships with foreign powers, direction of the military as Commander in Chief it is by no means an overstatement to conclude that current, accurate, and absolutely candid information is essential to the proper performance of his office. Nor is it an overstatement to conclude that the President must be free to give frank and candid instructions to his subordinates. It cannot be denied that one of the principal determinants of the quality of the information furnished to the President will be the degree of trust placed in him by those who confide in him. The Court itself, ante, at 448-449, cites approvingly the following language of the Solicitor General:
281
"Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submission of facts and opinions upon which effective discharge of his duties depends." See Brief for Federal Appellees 33.
282
The public papers of Dwight D. Eisenhower, who had the advantage of discharging executive responsibilities first as the Commander in Chief of the United States forces in Europe during the Second World War and then as President of the United States for two terms, attest to the critical importance of this trust in the President's discretion:
283
'And if any commander is going to get the free, unprejudiced opinions of his subordinates, he had better protect what they have to say to him on a confidential basis.' Public Papers of the Presidents of the United States: Dwight D. Eisenhower, 1955, p. 674 (1959).
284
The effect of a contrary course likewise impressed President Eisenhower:
285
'But when it comes to the conversations that take place between any responsible official and his advisers or exchange of little, mere slips of this or that, expressing personal opinions on the most confidential basis, those are not subject to investigation by anybody; and if they are, will wreck the Government.' Ibid. (Emphasis added.)
286
There simply can be no doubt that it is of the utmost importance for sensitive communications to the President to be viewed as confidential, and generally unreachable without the President's consent.
B
287
In order to fully understand the impact of this Act upon the confidential communications in the White House, it must be understood that the Act will affect not merely former President Nixon, but the present President and future Presidents. As discussed above, while this Act itself addresses only the papers of former President Nixon, today's decision upholding its constitutionality renders uncertain the constitutionality of future congressional action directed at any ex-President. Thus Presidential confidants will assume, correctly, that any records of communications to the President could be subject to 'appropriation' in much the same manner as the present Act seized the records of confidential communications to and from President Nixon. When advice is sought by future Presidents, no one will be unmindful of the fact that as a result of the uncertainty engendered by today's decision, all confidential communications of any ex-President could be subject to seizure over his objection, as he leaves the inaugural stand on January 20.
288
And Presidential communications will undoubtedly be impeded by the recognition that there is a substantial probability of public disclosure of material seized under this Act, which, by today's decision, is a constitutional blueprint for future Acts. First, the Act on its face requires that 100-odd Government archivists study and review Presidential papers, heretofore accessible only with the specific consent of the President. Second, the Act requires that public access is to be granted by future regulations consistent with 'the need to provide public access to those materials which have general historical significance . . ..' § 104(a)(6). Either of these provisions is sufficient to detract markedly from the candor of communications to and from the President.
289
In brushing aside the fact that the archivists are empowered to review the papers, the Court concludes that the archivists will be discreet. Ante, at 451-452. But there is no foundation for the Court's assumption that there will be no leaks. Any reviews that the archivists have made of Presidential papers in the past have been done only after authorization by the President, and after the President has had an opportunity to cull the most sensitive documents. It strikes me as extremely naive, and I daresay that this view will be shared by a large number of potential confidants of future Presidents, to suppose that each and every one of the archivists who might participate in a similar screening by virtue of a future Act would remain completely silent with respect to those portions of the Presidential papers which are extremely newsworthy. The Solicitor General, supporting the constitutionality of the Act, candidly conceded as much in oral argument:
290
'Question: . . . I now ask you a question that may sound frivolous, but do you think if a hundred people know anything of great interest in the City of Washington, it will remain a secret?
291
'(Laughter.)
292
'Mr. McCree: 'MR. JUSTICE POWELL, I have heard that if two people have heard it, it will not.' Tr. of Oral Arg. 46.
293
It borders on the absurd for the Court to cite our recent decision in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), as a precedent for the proposition that Government officials will invariably honor provisions in a law dedicated to the preservation of privacy. It is quite doubtful, at least to my mind, that columnists or investigative reporters will be avidly searching for what doctor prescribed what drug for what patient in the State of New York, which was the information required to be furnished in Whalen v. Roe. But with respect to the advice received by a President, or the instructions given by him, on highly sensitive matters of great historical significance, the case is quite the opposite. Hence, at the minimum, today's decision upholding the constitutionality of this Act, mandating review by archivists, will engender the expectation that future confidential communications to the President may be subject to leaks or public disclosure without his consent.
294
In addition to this review by archivists, Presidential papers may now be seized and shown to the public if they are of 'general historical significance.' The Court attempts to avoid this problem with the wishful expectation that the regulations regarding public access, when promulgated, will be narrowly drawn. However, this assumes that a Presidential adviser will speak candidly based upon this same wishful assumption that the regulations, when ultimately issued and interpreted, will protect his confidences. But the current Act is over two and one-half years old and no binding regulations have yet been promulgated. And it is anyone's guess as to how long it will take before such ambiguous terms as 'historical significance' are definitively interpreted, and as to whether some future Administrator as yet unknown might issue a broader definition. Thus, the public access required by this Act will at the very least engender substantial uncertainty regarding whether future confidential communications will, in fact, remain confidential.
295
The critical factor in all of this is not that confidential material might be disclosed, since the President himself might choose to 'go public' with it. The critical factor is that the determination as to whether to disclose is wrested by the Act from the President. When one speaks in confidence to a President, he necessarily relies upon the President's discretion not to disclose the sensitive. The President similarly relies on the discretion of a subordinate when instructing him. Thus it is no answer to suggest, as does the Court, ante, at 450-451, that the expectation of confidentiality has always been limited because Presidential papers have in the past been turned over to Presidential libraries or otherwise subsequently disclosed. In those cases, ultimate reliance was upon the discretion of the President to cull the sensitive ones before disclosure. But when, as is the case under this Act, the decision whether to disclose no longer resides in the President, communication will inevitably be restrained.
296
The Court, as does Mr. Justice POWELL, seeks to diminish the impact of this Act on the Office of the President by virtue of the fact that neither President Ford nor President Carter supports appellant's claim. Ante, at 441, 502 n. 5. It is quite true that President Ford signed the Act into law, and that the Solicitor General, representing President Carter, supports its constitutionality. While we must give due regard to the fact that these Presidents have not opposed the Act, we must also give due regard to the unusual political forces that have contributed to making this situation 'unique.' Ante, at 494 (POWELL, J., concurring). Mr. Justice POWELL refers to the stance of the current Executive as 'dispositive,' ante, at 498, and the Court places great emphasis upon it. I think this analysis is mistaken.
297
The current occupant of the Presidency cannot by signing into law a bill passed by Congress waive the claim of a successor President that the Act violates the principle separation of powers. We so held in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). And only last Term we unanimously held in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), that persons with no connection with the Executive Branch of the Government may attack the constitutionality of a law signed by the President on the ground that it invaded authority reserved for the Executive Branch under the principle of separation of powers. This principle, perhaps the most fundamental in our constitutional framework, may not be signed away by the temporary incumbent of the office which it was designed to protect.
298
Mr. Justice POWELL'S view that the incumbent President must join the challenge of the ex-President places Presidential communications in limbo, since advisers, at the time of the communication, cannot know who the successor will be or what his stance will be regarding seizure by Congress of his predecessor's papers. Since the advisers cannot be sure that the President to whom they are communicating can protect their confidences, communication will be inhibited. Mr. Justice POWELL'S view, requiring an ex-President to depend upon his successor, blinks at political and historical reality. The tripartite system of Government established by the Constitution has on more than one occasion bred political hostility not merely between Congress and a lameduck President, but between the latter and his successor. To substantiate this view one need only recall the relationship at the time of the transfer to the reins of power from John Adams to Thomas Jefferson, from James Buchanan to Abraham Lincoln, from Herbert Hoover to Franklin Roosevelt, and from Harry Truman to Dwight Eisenhower. Thus, while the Court's decision is an invitation for a hostile Congress to legislate against an unpopular lameduck President, Mr. Justice POWELL'S position places the ultimate disposition of a challenge to such legislation in the hands of what history has shown may be a hostile incoming President. I cannot believe that the Constitution countenances this result. One may ascribe no such motives to Congress and the successor Presidents in this case, without nevertheless harboring a fear that they may play a part in some succeeding case.
299
The shadow that today's decision casts upon the daily operation of the Office of the President during his entire four-year term sharply differentiates it from our previous separation-of-powers decisions, which have dealt with much more specific and limited intrusions. These cases have focused upon unique aspects of the operation of a particular branch of Government, rather than upon an intrusion, such as the present one, that permeates the entire decisionmaking process of the Office of the President. For example, in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Steel Seizure Cases), this Court held that the President could not by Executive Order seize steel mills in order to prevent a work stoppage when Congress had provided other methods for dealing with such an eventuality. In Myers v. United States, supra, the Court struck down an 1876 statute which had attempted to restrict the President's power to remove postmasters without congressional approval. In Buckley v. Valeo, supra, the Court struck down Congress' attempt to vest the power to appoint members of the Federal Election Commission in persons other than the President.
300
To say that these cases dealt with discrete instances of governmental action is by no means to disparage their importance in the development of our constitutional law. But it does contrast them quite sharply with the issue involved in the present case. To uphold the Presidential Recordings and Materials Preservation Act is not simply to sustain or invalidate a particular instance of the exercise of governmental power by Congress or by the President; it has the much more far-reaching effect of significantly hampering the President, during his entire term of office, in his ability to gather the necessary information to perform the countless discrete acts which are the prerogative of his office under Art. II of the Constitution.
C
301
It thus appears to me indisputable that this Act is a significant intrusion into the operations of the Presidency. I do not think that this severe dampening of free communication to and from the President may be discounted by the Court's adoption of a novel 'balancing' test for determining whether it is constitutional.7 I agree with the Court that the three branches of Government need not be airtight, ante, at 443, and that the separate branches are not intended to operate with absolute independence. United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 3107, 41 L.Ed.2d 1039 (1974). But I find no support in the Constitution or in our cases for the Court's pronouncement that the operations of the Office of the President may be severely impeded by Congress simply because Congress had a good reason for doing so.
302
Surely if ever there were a case for 'balancing.' and giving weight to the asserted 'national interest' to sustain governmental action, it was in the Steel Seizure Cases, supra. There the challenged Presidential Executive Order recited, without contradiction by its challengers, that 'American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea'; that 'the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials'; and that a work stoppage in the steel industry 'would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field.' 343 U.S., at 590-591, 72 S.Ct., at 868 (App. to opinion). Although the 'legislative' actions by the President could have been quickly overridden by an Act of Congress, id., at 677, 72 S.Ct., at 933-934 (Vinson, C.J., dissenting), this Court struck down the Executive Order as violative of the separation-of-powers principle with nary a mention of the national interest to be fostered by what could have been characterized as a relatively minimal and temporary intrusion upon the role of Congress. The analysis was simple and straightforward: Congress had exclusive authority to legislate; the President's Executive Order was an exercise of legislative power that impinged upon that authority of Congress, and was therefore unconstitutional. Id., at 588-589, 72 S.Ct., at 867-868. See also Buckley v. Valeo.8
303
I think that no only the Executive Branch of the Federal Government, but the Legislative and Judicial Branches as well, will come to regret this day when the Court has upheld an Act of Congress that trenches so significantly on the functioning of the Office of the President. I dissent.
1
For proceedings prior to convention of the three-judge court, see Nixon v. Richey, 168 U.S.App.D.C. 169, 513 F.2d 427, on reconsideration 168 U.S.App.D.C. 172, 513 F.2d 430 (1975). See also Nixon v. Sampson, 389 F.Supp. 107 (DE 1975).
2
No opinion was given respecting ownership of certain permanent files retained by the Chief Executive Clerk of the White House from administration to administration. The Attorney General was unable definitively to determine their status on the basis of then-available information. 43 Op.Atty. Gen. No. 1 (1974), App. 228.
3
The Court of Appeals for the District of Columbia Circuit stayed any order effectuating the decision in Nixon v. Sampson pending decision of the three-judge court whether under § 105(a) the instant case was to 'have priority on the docket of (the District) court over other cases,' Nixon v. Richey, 168 U.S.App.D.C., at 173, 177, 188-190, 513 F.2d, at 431, 435, 446-448. The three-judge court was of the view that 'the central purpose of Congress, in relation to all pending litigation, is to have an early and prior determination of the Act's constitutionality' and therefore did not request dissolution of the stay until entry of judgment. 408 F.Supp., at 333-334, n. 10.
4
This interpretation has abundant support in the legislative history of the Act. Senator Javits, one of the sponsors of S. 4016, stated: '(The criteria of § 104(a)) endeavor to protect due process for individuals who may be named in the papers as well as any privilege which may be involved in the papers, and of course the necessary access of the former President himself.
'In short, the argument that the bill authorizes absolute unrestricted public access does not stand up in the face of the criteria and the requirement for the regulations which we have inserted in the bill today.' 120 Cong.Rec. 33860 (1974).
Senator Nelson, the bill's draftsman, agreed that the primary purpose to provide for the American people a historical record of the Watergate events 'should not override all regard for rights of the individual to privacy and a fair trial.' Id., at 33851. Senator Ervin, also a sponsor and floor manager of the bill, stated:
'Nobody's right is affected by this bill, because it provides, as far as privacy is concerned, that the regulations of the Administrator shall take into account . . . (the) opportunity to assert any legally or constitutionally based right which would prevent or otherwise limit access to the tape recordings and other materials.' Id., at 33969.
See also id., at 33960 (remarks of Sen. Ervin); id., at 37902-37903 (remarks of Rep. Brademas).
5
Madison in The Federalist No. 47, reviewing the origin of the separation-of-powers doctrine, remarked that Montesquieu, the 'oracle' always consulted on the subject,
'did not mean that these departments ought to have no partial agency in, or no controul over the acts of each other. His meaning, as his own words import . . . can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted.' The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961) (emphasis in original).
Similarly, Mr. Justice Story wrote:
'(W)hen we speak of a separation of the three great departments of government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree.' 1 J. Story, Commentaries on the Constitution § 525 (M. Bigelow, 5th ed. 1905).
6
See also, e. g., 1 K. Davis, Administrative Law Treatise § 1.09 (1958); G. Gunther, Cases and Materials on Constitutional Law 400 (9th ed. 1975); L. Jaffe, Judicial Control of Administrative Action 28-30 (1965); Cox, Executive Privilege, 122 U.Pa.L.Rev. 1383, 1387-1391 (1974); Ratner, Executive Privilege, Self Incrimination, and the Separation of Powers Illusion, 22 UCLA Rev. 92-93 (1974).
7
The District Court correctly interpreted the Act to require meaningful notice to appellant of archival decisions that might bring into play rights secured by § 104(a)(5). 408 F.Supp., at 340 n. 23. Such notice is required by the Administrator's regulations, 41 CFR § 105-63.205 (1976), which provide: 'The Administrator of General Services or his designated agent will provide former President Nixon or his designated attorney or agent prior notice of, and allow him to be present during, each authorized access.'
8
We see no reason to engage in the debate whether appellant has legal title to the materials. See Brief for Appellant 90. Such an inquiry is irrelevant for present purposes because § 105(c) assures appellant of just compensation if his economic interests are invaded, and, even if legal title is his, the materials are not thereby immune from regulation. It has been accepted at least since Mr. Justice Story's opinion in Folsom v. Marsh, 9 Fed.Cas. No. 4,901 pp. 342, 347 (CC Mass.1841), that regardless of where legal title lies, 'from the nature of the public service, or the character of documents, embracing historical, military, or diplomatic information, it may be the right, and even the duty, of the government, to give them publicity, even against the will of the writers.' Appellant's suggestion that the Folsom principle does not go beyond materials concerning national security and current Government business is negated by Mr. Justice Story's emphasis that it also extended to materials 'embracing historical . . . information.' Ibid. (Emphasis added.) Significantly, no such limitation was suggested in the Attorney General's opinion to President Ford. Although indicating a view that the materials belonged to appellant, the opinion acknowledged that 'Presidential materials' without qualification 'are peculiarly affected by a public interest' which may justify subjecting 'the absolute ownership rights' to certain 'limitations directly related to the character of the documents as records of government activity.' 43 Op.Atty.Gen. No. 1 (1974), App. 220-230.
On the other hand, even if legal title rests in the Government, appellant is not thereby foreclosed from asserting under § 105(a) a claim for return of private materials retained by the Administrator in contravention of appellant's rights and privileges as specified in § 104(a)(5).
9
Like the District Court, we do not distinguish between the qualified 'executive' privilege recognized in United States v. Nixon and the 'presidential' privilege to which appellant refers, except to note that appellant does not argue that the privilege he claims extends beyond the privilege recognized in that case. See 408 F.Supp., at 343 n. 24.
10
United States v. Nixon recognized that there is a legitimate governmental interest in the confidentiality of communications between high Government officials, e. g., those who advise the President, and that '(h)uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.' 418 U.S., at 705, 94 S.Ct., at 3106.
11
Indeed, the opinion noted, id., at 705 n. 15, 94 S.Ct., at 3106, that Government confidentiality has been a concern from the time of the Constitutional Convention in 1787, the meetings of which were conducted in private, 1 M. Farrand, The Records of the Federal Convention of 1787, pp. xi-xxv (1911), and the records of which were sealed for more than 30 years after the Convention. See 3 Stat. 475, 15th Cong., 1st Sess., Res. 8 (1818). See generally C. Warren, The Making of the Constitution 134-139 (1937).
12
The District Court found that in the Hoover Library there are no restrictions on Presidential papers, although some restrictions exist with respect to personal and private materials, and in the Roosevelt Library, less than 0.5% of the materials is restricted. There is no evidence in the record as to the percentage of materials currently under restriction in the Truman or Eisenhower Libraries, but in the Kennedy Library, 85% of the materials has been processed, and of the processed materials, only 0.6% is under donor (as distinguished from security-related) restriction. In the Johnson Library, review of nonclassified materials is virtually complete, and more than 99% of all nonsecurity classified materials is unrestricted. In each of the Presidential libraries, provision has been made for the removal of the restrictions with the passage of time. 408 F.Supp., at 346 n. 31.
13
Aside from the public access eventually to be provided under § 104, the Act mandates two other access routes to the materials. First, under § 102(b), access is available in accordance with lawful process served upon the Administrator. As we have noted, see n. 7, supra, the appellant is to be advised prior to any access to the materials, and he is thereafter free to review the specific materials at issue, see § 102(c); 41 CFR § 105-63.301 (1976), in order to determine whether to assert any rights, privileges, or defenses. Section 102(b) expressly conditions ultimate access by way of lawful process upon the right of appellant to invoke any rights, defenses, or privileges.
Second, § 102(d) of the Act states: 'Any agency or department in the executive branch of the Federal Government shall at all times have access to the tape recordings and other materials . . . for lawful Government use . . ..' The District Court eschewed a board reading of that section as permitting wholesale access by any executive official for any conceivable executive purpose. Instead, it construed § 102(d) in light of Congress' presumed intent that the Act operate within constitutional bounds an intent manifested throughout the statute, see 408 F.Supp., at 337 n. 15. The District Court thus interpreted § 102(d), and in particular the phrase 'lawful use,' as requiring that once appellant is notified of requested access by an executive official, see n. 7, supra, he be allowed to assert any constitutional right or privilege that in his view would bar access. See 408 F.Supp., at 338 n. 18. We agree with that interpretation.
14
From its exhaustive survey of the legislative history, the District Court concluded that the public interests served by the Act could be merged undre 'the rubric of preservation of an accurate and complete historical record.' Id., at 348-349.
15
S.Rep. No. 93-1181, pp. 3-5 (1974); H.R.Rep. No. 93-1507, p. 3 (1974); 120 Cong.Rec. 37904 (remarks of Rep. Abzug.) See also § 102(d) of the Act.
Presidents in the past have had to apply to the Presidential libraries of their predecessors for permissionial libraries of their predecessors ernmental actions relating to current governmental problems. See 408 F.Supp., at 351-352. Although it appears that most such requests have been granted, Congress could legitimately conclude that the situation was unstable and ripe for change. It is clear from the face of the Act that making the materials available for the ongoing conduct of presidential policy was at least one of the objectives of the Act. See § 102(d).
16
S.Rep. No. 93-1181, pp. 1, 3 (1974); H.R.Rep. No. 93-1507, pp. 2-3, 8 (1974); Hearing on GSA Regulations Implementing Presidential Recordings and Materials Preservation Act before the Senate Committee on Government Operations, 94th Cong., 1st Sess., 256 (1975); 120 Cong.Rec. 31549-31550 (1974) (remarks of Sen. Nelson); Id., at 33850-33851; Id., at 33863 (remarks of Sen. Ervin); id., at 33874-33875 (remarks of Sen. Huddleston); id., at 33875-33876 (remarks of Sen. Ribicoff); Id., at 33876 (remarks of Sen. Muskie); id., at 33964-33965 (remarks of Sen. Nelson); id., at 37900-37901 (remarks of Rep. Brademas). See also §§ 101(b)(1), 104(a)(7) of the Act.
17
As to these several objectives of the legislature, see S.Rep. No. 93-1181, §§. 1, 3-4, 6 (1974); H.R.Rep. No. 93-1507, pp. 2-3, 8 (1974); 120 Cong.Rec. 31549-31550 (1974) remarks of Sen. Nelson); id., at 33849-33851; Id., at 37900-37901 (remarks of Rep. Brademas); id., at 37905 (remarks of Rep. McKinney). See also §§ 102(b), 104(a) of the Act.
18
Insofar as appellant argues a privacy claim based upon the First Amendment, see Part VI, infra. In joining this part of the opinion, Mr. Justice STEWART adherest to his views on privacy as expressed in his concurring opinion in Whalen v. Roe, 429 U.S. 5898 607, 97 S.Ct. 869, 880, 51 L.Ed.2d 64 (1977).
19
The District Court, 408 F.Supp., at 360 n. 54, surveyed evidence in the record respecting depository restrictions for all Presidents since President Hoover. It is unclear whether President Hoover actually excluded any of his personal and private materials from the scope of his gift, although his offer to deposit materials in a Presidential library reserved the right to do so. President Franklin D. Roosevelt also indicated his intention to select certain materials from his papers to be retained by his family. Because of his death, this function was performed by designated individuals and by his secretary. Again the record is unclear as to how many materials were removed. A number of personal documents deemed to be personal family correspondence were turned over to the Roosevelt family library in 1948, later returned to the official library in 1954-1955, and have been on loan to the family since then. It is unclear to what extent these materials were reviewed by the library personnel.
President Truman withheld from deposit the personal file maintained in the White House by his personal secretary. This file was deposited with the library upon his death in 1974, although the terms of his will excluded a small number of items determined by the executors of his will to pertain to personal or business affairs of the Truman family. President Eisenhower's offer to deposit his Presidential materials excluded materials determined by him or his representative to be personal or private. President Kennedy's materials deposited with GSA did not include certain materials relating to his private affairs, and some recordings of meetings involving President Kennedy, although physically stored in the Kennedy Library, have not yet been turned over to the library or reviewed by Government archivists. President Johnson's offer to deposit materials excluded items which he determined to be of special or private interest pertaining to personal or family affairs.
20
Even if prior Presidents had declined to assert their privacy interests in such materials, their failure to do so would not necessarily bind appellant, for privacy interests are not solely dependent for their constitutional protection upon established practice of governmental toleration.
21
We agree with the District Court that the Fourth Amendment's warrant requirement is not involved. 408 F.Supp., at 361-362.
22
Some materials are still in appellant's possession, as the Administrator has not yet attempted to act on his authority under § 101(b)(1) to take custody of them. See Brief for Federal Appellees 4 n. 1. Moreover, the Solicitor General conceded at oral argument that there are certain purely private materials which 'should be returned to (appellant) once . . . identified.' Tr. of Oral Arg. 58-59. The District Court enjoined the Government from 'processing, disclosing, inspecting, transferring, or otherwise disposing of any materials . . . which might fall within the coverage of . . . the . . . Act . . ..' 408 F.Supp., at 375. As the District Court's stay is no longer in effect, the Government should now promptly disclaim may interest in materials conceded to be appellant's purely private communications and deliver them to him.
23
The Solicitor General implied at oral argument that the requirement of the guidelines directing the Administrator to consider the need to return to appellant 'for his sole custody and use . . . materials which are not (Watergate related) . . . and are not otherwise of general historical significance,' § 104(a)(7), is further qualified by the requirement under §§ 102(b) and 104(a)(5), that the regulations promulgated by the Administrator take into account the need to protect appellant's rights, defenses, or privileges. Tr. of Oral Arg. 37-38.
24
Appellant argues that screening under the Act contrasts with the screening procedures followed by earlier Presidents who, 'in donating materials to Presidential libraries, have been able . . . to participate in the selection of persons who would review the materials for classification purposes.' Brief for Appellant 151 n. 68. We are unable to say that the record substantiates this assertion. The record is most complete with respect to President Johnson, who appears to have recommended the individual who was later selected as Director of the Johnson Library, but seems not to have played any role in the selection of the archivists actually performing the day-to-day processing. 408 F.Supp., at 365 n. 60. Moreover, we agree with the District Court that it is difficult to see how professional archivists performing a screening task under proper standards would be meaningfully affected in the performance of their duties by loyalty to individuals or institutions. Ibid.
25
Appellant argues that, unlike electronic surveillance, where success depends upon the subject's ignorance of its existence, appellant could have been allowed to separate his personal from official materials. But Congress enacted the Act in part to displace the Nixon-Sampson agreement that expressly provided for automatic destruction of the tape recordings in the event of appellant's death and that allowed appellant complete discretion in the destruction of materials after the initial three-year storage period.
Moreover, appellant's view of what constitutes official as distinguished from personal and private materials might differ from the view of Congress, the Executive Branch, or a reviewing court. Not only may the use of disinterested archivists lead to application of uniform standards in separating private from nonprivate communications, but the Act provides for judicial review of their determinations. This would not be the case as to appellant's determinations.
26
The District Court found, 408 F.Supp., at 364 n. 58, and we agree, that it is irrelevant that Title III, unlike this Act, requires adherence to a detailed warrant requirement, 18 U.S.C. § 2518. That requirement is inapplicable to this Act, since we deal not with standards governing a generalized right to search by law enforcement officials or other Government personnel but with a particularized legislative judgment, supplemented by judicial review, similar to condemnation under the power of eminent domain, that certain materials are of value to the public.
27
The fact that the overwhelming majority of the materials is relevant to Congress' lawful objectives is in contrast to the experience under the Omnibus Crime Control Act. A recent report on surveillance conducted under the Omnibus Act indicates that for the calendar year 1976 more than one-half of all wire intercepts authorized by judicial order yielded only nonincriminating communications. Administrative Office of the U. S. Courts, Report on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications, Jan. 1, 1976, to Dec. 31, 1976, p. XII (Table 4).
28
Throughout this litigation appellant has claimed that his privacy will necessarily be unconstitutionally invaded because the screening requires a staff of 'over one hundred archivists, accompanied by lawyers, technicians and secretaries (who) will have a right to review word-by-word five and one-half years of a man's life . . ..' Tr. of Oral Arg. 16. The size of the staff is, of course, necessarily a function of the enormous quantity of materials involved. But clearly not all engaged in the screening will examine each document. The Administrator initially proposed that only one archivist examine most documents. See 408 F.Supp., at 365 n. 59.
29
Appellant argues that Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Staub v. Baxley, 355 U.S, 313, 319-321, 78 S.Ct. 277, 280-281, 2 L.Ed.2d 302 (1958); Thomas v. Collins, 323 U.S. 516, 538-541, 65 S.Ct. 315, 326-327, 89 L.Ed. 430 (1945); and Lovell v. griffin, 303 U.S. 444, 452-453, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938), support his contention that '(a) statute which vests such broad authority (with respect to First Amendment rights) is unconstitutional on its face, and the party subjected to it may treat it as a nullity even if its actual implementation would not harm him.' Brief for Appellant 169. The argument is without merit. Those cases involved regulations that permitted public officials in their arbitrary discretion to impose prior restraints on expressional or associational activities. In contrast, the Act is concerned only with materials that record past activities and with a screening process guided by longstanding archival screening standards.
30
Article I, § 9, applicable to Congress, provides that '(n)o Bill of Attainder or ex post facto Law shall be passed,' and Art. 1, § 10, applicable to the States, provides that '(n)o State shall . . . pass any Bill of Attainder, ex post facto Law . . ..' The linking of bills of attainder and ex post facto laws is explained by the fact that a legislative denunciation and condemnation of an individual often acted to impose retroactive punishment. See Z. Chafee, Jr., Three Human Rights in the Constitution of 1787, pp. 92-93 (1956).
31
In this case, for example, appellant faults the Act for taking custody of his papers but not those of other Presidents. Brief for Appellant 130. But even a congressional definition of the class consisting of all Presidents would have been vulnerable to the claim of being overly specific, since the definition might more generally include all members of the Executive Branch, or all members of the Government, or all in possession of Presidential papers, or all in possession of Government papers. This does not dispose of appellant's contention that the Act focuses upon him with the requisite degree of specificity for a bill of attainder, see infra, at 471-472, but it demonstrates that simple reference to the breadth of the Act's focus cannot be determinative of the reach of the Bill of Attainder Clause as a limitation upon legislative action that disadvantages a person or group. See, e. g., United States v. Brown, 381 U.S. 437, 474-475, 85 S.Ct. 1707, 1728, 14 L.Ed.2d 484 (1965) (White, J., dissenting); n. 34, infra.
32
'The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation.'
33
We observe that appellant originally argued that 'for similar reasons' the Act violates both the Bill of Attainder Clause and equal protection of the laws. Jurisdictional Statement 27-28. He has since abandoned reliance upon the equal protection argument, apparently recognizing that mere underinclusiveness is not fatal to the validity of a law under the equal protection component of the Fifth Amendment, New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966), even if the law disadvantages an individual or identifiable members of a group, see, e. g., Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955) (opticians); Daniel v. Family Ins. Co., 336 U.S. 220, 69 S.Ct. 550, 93 L.Ed. 632 (1949) (insurance agents). 'For similar reasons' the mere specificity of law does not call into play the Bill of Attainder Clause. Cf. Comment, The Supreme Court's Bill of Attainder Doctrine: A Need for Clarification, 54 Calif.L.Rev. 212, 234-236 (1966); but see Comment, The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause, 72 Yale L.J. 330 (1962).
34
Brown recognized this by making clear that conflict-of-interest laws, which inevitably prohibit conduct on the part of designated individuals or classes of individuals, do not contravene the bill of attainder guarantee. Brown specifically noted the validity of § 32 of the Banking Act of 1933, 12 U.S.C. § 78, which disqualified identifiable members of a group officers and employees of underwriting organizations from serving as officers of Federal Reserve Banks, 381 U.S., at 453, 85 S.Ct., at 1717. Other valid federal conflict-of-interest statutes which also single out identifiable members of groups to bear burdens or disqualifications are collected, Id., at 467-468, n. 2, 85 S.Ct., at 1724-1725 (White, J., dissenting). See also Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (upholding transfer of rail properties of eight railroad companies to Government-organized corporation).
35
See, for example, the 1685 attainder of James, Duke of Monmouth, for high treason: 'WHEREAS James duke of Monmouth has in an hostile manner invaded this kingdom and is now in open rebellion, levying war against the king, contrary to the duty of his allegiance; Be by and with the advice and consent of the lords spiritual and temporal, and commons in this parliament assembled, and by the authority of the same, That the said James duke of Monmouth stand and be convicted and attainted of high treason, and that he suffer pains of death, and incur all forfeitures as a traitor convicted and attainted of high treason.' 1 Jac. 2, c. 2 (1685) (emphasis omitted).
The attainder of death was usually accompanied by a forfeiture of the condemned person's property to the King and the corruption of his blood, whereby his heirs were denied the right to inherit his estate. Blackstone traced the practice of 'corruption of blood' to the Norman conquest. He considered the practice an 'oppressive mark of feudal tenure' and hoped that it 'may in process of time be abolished by act of parliament.' 4 W. Blackstone Commentaries* 388. The Framers of the United States Constitution responded to this recommendation. Art. III, § 3.
36
See, e. g., 10 & 11 Will. 3, c. 13 (1701): 'An Act for continuing the Imprisonment of Counter and others, for the late horrid Conspiracy to assassinate the Person of his sacred Majesty.'
37
See, e. g., Cooper v. Telfair, 4 Dall. 14, 1 L.Ed. 721 (1800) ("all and every the persons, named and included in the said act (declaring persons guilty of treason) are banished from the said state (Georgia)"); 2 R. Wooddeson, A Systematical View of the Laws of England 638-639 (1792) (banishment of Lord Clarendon and the Bishop Atterbury). See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168, n. 23, 83 S.Ct. 554, 567, 9 L.Ed.2d 644 (1963).
38
Following the Revolutionary War, States often seized the property of alleged Tory sympathizers. See, e. g., James's Claim, 1 Dall. 47, 1 L.Ed. 31 (1780) ('John Parrock was attainted of High Treason, and his estate seized and advertised for sale'); Respublica v. Gordon, 1 Dall. 233, 1 L. Ed. 115 (1788) ('attainted of treason for adhering to the king of Great Britain, in consequence of which his estate was confiscated to the use of the commonwealth . . .').
39
In fact, it remains unsettled whether the materials in question are the property of appellant or of the Government. See n. 8, supra.
40
In determining whether punitive or nonpunitive objectives underlie a law, United States v. Brown established that punishment is not restricted purely to retribution for past events, but may include inflicting deprivations on some blameworthy or tainted individual in order to prevent his future misconduct. 381 U.S., at 458-459, 85 S.Ct., at 1720. This view is consistent with the traditional purposes of criminal punishment, which also include a preventive aspect. See, e. g., H. Packer, The Limits of the Criminal Sanction 48 61 (1968). In Brown the element of punishment was found in the fact that 'the purpose of the statute before us is to purge the governing boards of labor unions of those whom Congress regards as guilty of subversive acts and associations and therefore unfit to fill (union) positions . . ..' 381 U.S., at 460, 85 S.Ct., at (72). Thus, Brown left undisturbed the requirement that one who complains of being attainted must establish that the legislature's action constituted punishment and not merely the legitimate regulation of conduct. Indeed, just three Terms later, United States v. O'Brien, 391 U.S. 367, 383 n. 30, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1968), which, like Brown, was also written by Mr. Chief Justice Warren, reconfirmed the need to examine the purposes served by a purported bill of attainder in determining whether it in fact represents a punitive law.
41
The Senate pointed to these same objectives in nullifying the Nixon-Sampson agreement: '(1) To begin with, prosecutors, defendants, and the courts probably would be deprived of crucial evidence bearing on the defendants' innocence or guilt of the Watergate crimes for which they stand accused. (2) Moreover, the American people would be denied full access to all facts about the Watergate affair, and the efforts of Congress, the executive branch, and others to take measures to prevent a recurence of the Watergate affair may be inhibited.' S.Rep. No. 93-1181, p. 4 (1974).
42
These cases upheld exercises of the power of eminent domain in preserving historical monuments and like facilities for public use. The power of eminent domain, however, is not restricted to tangible property or realty but extends both to intangibles and to personal effects as involved here. See Cincinnati v. Louisville & Nashville R. Co., 223 U.S. 390, 400, 32 S.Ct. 267, 268, 56 L.Ed. 481 (1912); Porter v. United States, 473 F.2d 1329 (CA5 1973).
43
Particularly troublesome was the provision of the agreement requiring the automatic destruction of tape recordings upon appellant's death.
44
In condemning the enactment as a bill of attainder, Senator Hruska argued that the bill seizes appellant's papers and distributes them to litigants without affording appellant the opportunity judicially 'to assert a defense or privilege to the production of the papers.' 120 Cong.Rec. 33871 (1974). In fact, the Act expressly recognizes appellant's right to present all such defenses and privileges through an expedited judicial proceeding. See infra, at 481-482.
45
The Court in United States v. Brown, 381 U.S., at 444, 85 S.Ct., at 1712, referred to Alexander ander Hamilton's concern that legislatures might cater to the 'momentary passions' of a "free people, in times of heat and violence . . .." In this case, it is obvious that the supporters of this Act steadfastly avoided inflaming or appealing to any 'passions' in the community. Indeed, rather than seek expediently to impose punishment and to circumvent the courts. Congress expressly provided for access to the Judiciary for resolution of any constitutional and legal rights appellant might assert. S.Rep. No. 93 1181, pp. 2 6 (1974).
46
Regulations guaranteeing appellant's unrestricted access to the materials have been promulgated by the Administrator and have not been challenged. See 41 CFR §§ 105-63.3 (1976).
47
In brief, legislative history of the Act offers a paradigm of a Congress aware of constitutional constraints on its power and carefully seeking to act within those limitations. See generally Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 Stan.L.Rev. 585 (1975).
48
For example, in his deposition taken in this case, appellant refused to answer questions pertaining to the accuracy and reliability of his prior public statements as President concerning the contents of the tape recordings and other materials in issue. He invoked a claim of privilege and asserted that the questions were irrelevant to the judicial inquiry. See, e. g., App. 586-590.
1
At the debate on the impeachment of the Earl of Danby, the Earl of Carnarvon recounted this history:
'My Lords, I understand but little of Latin, but a good deal of English, and not a little of the English history, from which I have learnt the mischiefs of such kind of prosecutions as these, and the ill fate of the prosecutors. I shall go no farther back than the latter end of Queen Elizabeth's reign: At which time the Earl of Essex was run down by Sir Walter Raleigh, and your Lordship very well know what became of Sir Walter Raleigh. My Lord Bacon, he ran down Sir Walter Raleigh, and your Lordships know what became of my Lord Bacon. The Duke of Buckingham, he ran down my Lord Bacon, and your Lordships know what happened to the Duke of Buckingham. Sir Thomas Wentworth, afterwards Earl of Strafford, ran down the Duke of Buckingham, and you all know what became of him. Sir Harry Vane, he ran down the Earl of Strafford, and your Lordships know what became of Sir Harry Vane. Chancellor Hyde, he ran down Sir Harry Vane, and your Lordships know what became of the Chancellor. Sir Thomas Osborne, now Earl of Danby, ran down Chancellor Hyde; but what will become of the Earl of Danby, your Lordships best can tell. But let me see that man that dare run the Earl of Danby down, and we shall soon see what will become of him.' (Footnote omitted.) As quoted in Z. Chafee, Jr., Three Human Rights in the Constitution of 1787, p. 127 (1956).
2
See Burdick v. United States, 236 U.S. 79, 94, 35 S.Ct. 267, 270, 59 L.Ed. 476.
3
Cf. Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648:
'That Charles 1st. king of England, was beheaded; that Oliver Cromwell was Protecter of England; that Louis 16th, late King of France, was guillotined; are all facts, that have happened; but it would be nonsense to suppose, that the States were prohibited from making any law after either of these events, and with reference thereto.'
*
'QUESTION: Well now, suppose Mr. Nixon has prepared a diary every day and put down what, exactly what he did, and let's suppose that someone thought that was a purely personal account. Now, I can just imagine that someone might think that it nevertheless is of general historical significance.
'MR. McCREE: May I refer the Court to need No. 5? 'The need to protect any party's opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials.'
'And I submit that this Act affords Richard M. Nixon the opportunity to assert the contention that this diary of his is personal and has not the kind of historical significance that will permit his deprivation; and that would then have to be adjudicated in a court.
'QUESTION: Well, do
'MR. McCREE: And ultimately this Court will answer that question.
'QUESTION: Well, how do you so you would agree; then, that 104 must be construed must be construed to sooner or later return to Mr. Nixon what we might call purely private papers?
'MR. McCREE: Indeed I do.
'QUESTION: Can you imagine any diary thinking of Mr. Truman's diary, which it is reported, was a result of being dictated every evening, after the day's work can you conceive of any such material that would not be of general historical interest?
'MR. McCREE: I must concede, being acquainted with some historians, that it's difficult to conceive of anything that might not be of historical interest. But
'(Laughter.)
'QUESTION: Yes. Archivists and historians, Like journalists.
'MR. McCREE: Indeed they are.
'QUESTION: think that everything is.
'(Laughter.)
'MR. McCREE: But this legislation recognizes that a claim of privacy,
a claim of privilege must be protected, and if the regulations are insufficient to do that, again a court will have an opportunity to address itself to a particular item such as the diary before it can be turned over.
'And for that reason, we suggest that the attack at this time is premature because the statute, in recognizing the right of privacy, is facially adequate. And the attack that was made the day after it became effective brought to this Court a marvelous opportunity to speculate about what might happen, but the regulations haven't even been promulgated and acquiesced in so that they have become effective.' Tr. of Oral Arg. 38-40.
'(Mr. HERZSTEIN, for the private appellees:)
'But there's just no question about the return of personal diaries, Dictabelts, so long as they are not the materials involved in the transaction of government business.
'Now, the statute, I agree, could have been drafted a little more clearly, but we think there are several points which make it quite clear that his personal materials are to be returned to him.
'One is the fact that statute refers to the presidential historical materials of Richard Nixon, not to the person(al) or private materials.
'The second is that, as Judge McCree mentioned, criterion 7 calls for a return of materials to him, and if you read those two in conjunction with the legislative history, there are statements on the Floor of the Senate, on the Floor of the House, and in the Committee Reports, indicating the expectation that Nixon's personal records would be returned to him.
'QUESTION: Could you give us a capsule summary of the difference between what you have just referred to as Nixon's personal records, which will be returned, and the matter which will not be returned?
'MR. HERZSTEIN: Well, yes. Certainly any personal letters, among his family or friends, certainly a diary made at the end of the day, as it were, after the event
'QUESTION: Even though the Dictabelt was paid for out of White House appropriations?
'MR. HERZSTEIN: That's right. That doesn't bother us. I think it's incidental now. But we do have a different view on the tapes, which actually recorded the transaction of government business by government
employees on government time and so on. The normal tapes that we've heard so much about.
'The Dictabelts, Mr. Nixon has said, are his personal diary. Instead of writing it down, in other words, he dictated it at the end of the day. And we think that's
'QUESTION: I want to be sure about the concession, because this certainly is of historical interest.
'MR. HERZSTEIN: That's right, it is, but we do not feel it's covered by the statute. We have acknowledged that from the start.
'QUESTION: Is this concession shared by the Solicitor General, do you think?
'MR. HERZSTEIN: We believe it is.
'QUESTION: What about that?
'MR. McCREE: About the fact that the paper belongs to the government and so forth, we don't believe that makes a document a government documen(t). We certainly agree with that.
'Beyond that, if the Court please
'QUESTION: What about the Dictabelts representing his daily diary?
'MR. McCREE: I would think that's a personal matter that would be should be returned to him once it was identified.
'QUESTION: Well, is there any problem about, right this very minute, of picking those up and giving them back to Mr. Nixon?
'MR. McCREE: I know of no problem. Whether it would have to await the adoption of the regulation, which has been stymied by Mr. Nixon's lawsuit, which has been delayed for three years,
'QUESTION: How has that stymied the issuance of regulations, Mr. Solicitor General?
'MR McCREE: One of the dispositions of the district court was to stay the effectiveness of regulations. Now, I think it held up principally the regulations for public access. The other regulations are not part of this record, and I cannot speak to the Court with any knowledge about them.' Id., at 57-59.
1
Although I agree with much of Parts IV and V, I am unable to join those parts of the Court's opinion because of my uncertainty as to the reach of its extended discussion of the competing constitutional interests implicated by the Act.
2
By way of illustration, the District Court observed that the following archival practices might be adopted to limit invasion of appellant's constitutionally protected interests:
'1. A practice of requiring archivists to make the minimal intrusion necessary to classify material. Identification by signature, the file within which material is found, general nature (as with diaries, or dictabelts serving the same function), a cursory glance at the contents, or other means could significantly limit infringement of plaintiff's interests without undermining the effectiveness of screening by governmental personnel. Participation by Mr. Nixon in preliminary identification of material that might be processed without word-by-word review would facilitate such a procedure.
'2. A practice of giving Mr. Nixon some voice in the designation of the personnel who will review the materials, perhaps by selecting from a body archivists approved by the government.
'3. A practice of giving Mr. Nixon notice of all proposed classifications of materials and an opportunity to obtain administrative and judicial review of them, on constitutional or other grounds, before they are effectuated.' 408 F.Supp., at 339-340 (footnotes omitted).
I agree with the views expressed by Mr. Justice WHITE, ante, at 487-491, on the need to return private materials to appellant.
3
The District Court noted the existence of: 'a basic set of donor-imposed access restrictions that was first formulated by Herbert Hoover (and) followed by Presidents Eisenhower, Kennedy, and Johnson. Under this scheme the following materials would be restricted:
'1) materials that are security-classified;
'2) materials whose disclosure would be prejudicial to foreign affairs;
'3) materials containing statements made by or to a President in confidence;
'4) materials relating to the President's family, personal, or business affairs or to such affairs of individuals corresponding with the President;
'5) materials containing statements about individuals that might be used to embarrass or harass them or members of their families;
'6) such other materials as the President or his representative might designate as appropriate for restriction.
'President Franklin Roosevelt imposed restrictions very similar to numbers 1, 2, 4, and 5, and in addition restricted (a) investigative reports on individuals, (b) applications and recommendations for positions, and (c) documents containing derogatory remarks about an individual. President Truman's restrictions were like those of Hoover, Eisenhower, Kennedy, and Johnson, except that he made no provision, like number 6 above, for restriction merely at his own instance.' 408 F.Supp., at 338-339 n. 19 (citations omitted).
4
The validity of the provision of § 104(b) for possible disapproval of the Administrator's regulations by either House of Congress is not before us at this time. See 408 F.Supp., at 338 n. 17; Brief for Federal Appellees 26, and n. 11.
5
There is at least some risk that political, and even personal, antagonisms could motivate Congress and the President to join in a legislative seizure and public exposure of a former President's papers without due regard to the long-range implications of such action for the Art. II functions of the Chief Executive. Even if such legislation did not violate the principle of separation of powers, it might well infringe individual liberties protected by the Bill of Attainder Clause or the Bill of Rights. But this is not the case before us. In passing this legislation, Congress acted to further legitimate objectives in circumstances that were wholly unique in the history of our country. The legislation was approved by President Ford, personally chosen by President Nixon as his successor, and is now also supported by President Carter. In view of the circumstances leading to its passage and the protection it provides for "any . . . constitutionally based right or privilege," supra, at 496, this Act on its face does not violate the personal constitutional rights asserted by appellant.
6
Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-637, 72 S.Ct. 863, 870-871, 96 L.Ed. 1153 (1952) (Jackson, J., concurring): 'When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. . . .' (Footnote omitted.) See also Williams v. Suffolk Insurance Co., 13 Pet. 415, 420, 10 L.Ed. 226 (1839):
'(T)his Court ha(s) laid down the rule, that the action of the political branches of the government in a matter that belongs to them, is conclusive.'
1
Later, I will discuss the importance of the legislation's applicability to only one ex-President.
2
In this, Mr. Justice Miller was but expressing the earlier opinion of Madison, who declared in The Federalist No. 48, p. 334 (J. Cooke ed. 1961).
'The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive and less susceptible of precise limits, it can with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the coordinate departments.'
3
Statutes relating to departments or agencies created by Congress frequently are phrased in mandatory terms. For example, in the 1949 legislation creating the General Services Administration, Congress provided as follows:
'The Administrator is authorized and directed to coordinate and provide for the . . . efficient purchase, lease and maintenance of . . . equipment by Federal agencies.' 40 U.S.C. § 759(a).
Even with respect to international relations, Congress has affirmatively imposed certain requirements on the Secretary of State:
'The Secretary of State shall furnish to the Public Printer a correct copy of every treaty between the United States and any foreign government . . ..' 22 U.S.C. § 2660.
4
Cf. Mr. Justice WHITE's discussion in United States v. Brewster, 408 U.S. 501, 558, 92 S.Ct. 2531, 2560, 33 L.Ed.2d 507 (1972) (dissenting opinion), where he spoke of the 'evil' of 'executive control of legislative behavior . . ..' (Emphasis supplied.)
5
This Presidential prerogative has not been limited to foreign affairs, where, of course, secrecy and confidentiality may be of the utmost importance. See A. Bickel, The Morality of Consent 79 (1975); W. Taft, The Presidency 110 (1916).
6
The Court's references to the historical understanding of separation-of-powers principles omit a crucial part of that history. Madison's statements in The Federalist No. 47 as to one department's exercising the 'whole power' of another department do not purport to be his total treatment of the subject. The Federalist No. 48, two days later, states the central theme of Madison's view:
'It is equally evident, that neither (department) ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers.' The Federalist No. 48, p. 332 (J. Cooke ed. 1961). (Emphasis supplied.)
Indeed, Madison expressly warned at length in No. 48 of the inevitable dangers of 'encroachments' by the Legislative Branch upon the coordinate departments of Government.
But aside from the Court's highly selective discussion of the Framers' understanding, the Court cannot obscure the fact that this Court has never required, in order to show a separation-of-powers violation, that Congress usurped the whole of executive power. Any such requirement was rejected by the Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). There, we held that Congress could not constitutionally exercise the President's appointing powers, even though under that statute the President had the power to appoint one-fourth of the Federal Election Commission members, and even though the President had 'approved' the statute when he signed the bill into law.
7
Nowhere is the standard clarified in the majority's opinion. We are left to guess whether only a 'potential for disruption' is required or whether 'undue disruption,' whatever that may be, is required.
8
The federal parties filed three briefs in Buckley. The main brief, styled the 'Brief for the Attorney General as Appellee and for the United States as Amicus Curiae,' explicitly stated that the method of appointment of four of the members of the Commission was unconstitutional. See pp. 6-7, 110-120. The Attorney General signed this portion of the brief as a party (see pp. 2, 103 n. 65). The Executive Branch therefore made it clear that, in its view, the statute was unconstitutional to the extent it reposed appointing powers in Congress. The second brief, styled the 'Brief for the Attorney General and the Federal Election Commission,' generally defended the Act but took no position concerning the method of appointing the Commission. See p. 1 n. 1. The third brief was filed by the Commission on its own behalf only; it defended the appointment procedures, but it was not joined by the Attorney General and did not express the view of the President or of any other portion of the Executive Branch.
9
As to congressional papers, see supra, at 510-511. Despite the Constitution's silence as to the papers of the Legislative Branch, this Court had no difficulty holding those papers to be protected from control by other branches. See also Mr. Justice Brennan's dissenting opinion in United States v. Brewster, 408 U.S. 501, 532-533, 92 S.Ct. 2531, 2547, 33 L.Ed.2d 507 (1972), where he quotes approvingly from Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881), and Coffin v. Coffin, 4 Mass. 1 (1808). In both of those cases, written materials by legislators were deemed to be protected by legislative immunity from intrusion or seizure.
10
This discretion was exercised, as we have seen, by President Washington in the face of a congressional demand for production of his workpapers.
Obviously, official documents fall into an entirely different category and are not involved in this case.
11
Appellees, of course, would view that sort of intrusion as an intra branch confrontation, since United States Marshals are officials of the Executive Branch, at least so long as the District Judge simply ordered the Marshals to take custody of and to review the documents without turning them over to the court. This is, of course, sheer sophistry.
12
Of course, United States v. Nixon pertained only to the setting of Judicial-Executive conflict. Nothing in our holding suggests that, even if Congress needed Presidential documents in connection with its legislative functions, the constitutional tradition of Presidential control over Presidential documents in the face of legislative demands could be abrogated. We expressly stated in Nixon that '(w)e are not here concerned with the balance between . . . the confidentiality interest and congressional demands for information . . ..' 418 U.S., at 712 n. 19, 94 S.Ct., at 3109.
13
In his concurring opinion, Mr. Justice POWELL concludes that Title I was addressed essentially to an 'emergency' situation in the wake of appellant's resignation. But his opinion does not present any analysis as to whether this particular legislation, not some other legislation, is necessary to achieve that end. Since Title I commands confiscation of all materials of an entire Presidential administration, Title I was simply not drafted to meet the specific emergency it purports to address. Besides omitting any discussion justifying the need for Title I, Mr. Justice POWELL's opinion relies entirely on the possibly limiting regulations to be promulgated at some future point by the GSA Administrator, which will protect 'all constitutional and legal rights . . ..' Ante, at 497. This conclusion, of course, begs the precise question before us, which is whether the act of congressionally mandated seizure of all Presidential materials of one President violates the Constitution.
14
Civil service statutes aside, we know now that an executive official cannot replace all of his underlings on the basis of a patronage system. Thus, as a matter of constitutional law, a Chief Executive would not be at liberty to replace all Executive Branch officials with persons who, for political reasons, enjoy the President's trust and confidence. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).
15
I cannot accept the argument pressed by appellees that review is rendered harmless by the fact that many of the documents may not be protected by Presidential privilege. How 'harmless' review justifies manifestly 'harmful' review escapes me.
16
President Truman, for one, objected to Congress' efforts to coerce him after he was no longer in office in connection with matters pertaining to his administration. See infra, at 522.
17
It would be the height of impertinence, after all, to serve a legislative subpoena on an outgoing President as he is departing from the inauguration of his successor. So too, the people would rightly be offended, and more important, so would the Constitution, by a congressional resolution, designed to ensure the smooth functioning of the Executive Branch, requiring a former President, upon leaving office, to remain in Washington, D.C., in order to be available for consultations with his successor for a prescribed period of time.
18
The fact that the President signs a bill into law, and thereafter defends it, without more, does not mean, of course, that the policy embodied in the legislation is that of the President, nor does it even mean that the President personally approves of the measure. When signing a bill into law, numerous Presidents have actually expressed disagreement with the legislation but felt constrained for a variety of reasons to permit the bill to become law. President Franklin D. Roosevelt repudiated the 'Lovett Rider' later struck down by this Court in United States v. Lovett, 328 U.S. 303, 325, 66 S.Ct. 1073, 1083, 90 L.Ed. 1252 (1946) (Frank-furter, J., concurring). President Ford did not request this legislation in order to assure the effective functioning of the Executive Branch.
19
Since by definition the concern is with former Presidents, I see no distinction in Congress' seeking to compel the appearance and testimony of a former President and in, alternatively, seeking to compel the production of Presidential papers over the former President's objection.
20
Clients asserting the attorney-client privilege have not, up to now, been foreclosed from interposing the privilege unless a similarly situated client is willing to support the particular claim.
21
The District Court concluded its discussion of the privacy challenge as follows: 'We would be less than candid were we to state that we find it as easy to dispose of Mr. Nixon's privacy claims as his claim of presidential privilege.' 408 F.Supp., at 367.
22
Although the District Court expressly concluded that the former President had a 'legitimate expectation' that his Presidential materials would not be subject to 'comprehensive review by government personnel without his consent,' id., at 361, the Court nonetheless deemed the compulsory intrusion permissible given the constitutionality of the federal wiretap statute, 18 U.S.C. §§ 2510-2520, which of course permits substantial governmental intrusions into the privacy of individuals. Not only is this analogy imperfect, as the District Court itself admitted, 408 F.Supp., at 364, but this analysis fails to apply the 'exacting scrutiny' called for by our decisions. Above all, the present statute fails to provide any of the stringent safeguards, including a warrant, mandated by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Indeed, the District Court flatly admitted as much. Ibid.
23
Administrative efficiency is obviously a highly desirable goal. See, e.g., Dixon v. Love, 431 U.S. 105, 114, 97 S.Ct. 1723, 1728, 52 L.Ed.2d 172 (1977); Mathews v. Eldridge, 424 U.S. 319, 347-349, 96 S.Ct. 893, 909-910, 47 L.Ed.2d 18 (1976). However, I am constrained to recall that 'administrative efficiency' has not unformly been regarded as of 'overriding importance.' Indeed, claims of administrative efficiency have been swiftly dismissed at times as mere 'bald assertion(s).' Richardson v. Wright, 405 U.S. 208, 223, 92 S.Ct. 788, 796, 31 L.Ed.2d 151 (1972) (Brennan, J., dissenting). Numerous other opinions have held that individual interests, including the right to welfare payments, 'clearly outweigh' government interests in promoting 'administrative efficiency,' Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (opinion of Brennan, J.). And, Mr. Justice Marshall in Shapiro v. Thompson, 294 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969), stated that when 'fundamental' rights are at stake, such as the 'right to travel,' government must demonstrate a 'compelling' interest, not merely a 'rational relationship between (the underlying statute) and (the) . . . admittedly permissible state objectives . . ..'
24
The initial interest in preserving the materials for judicial purposes has diminished substantially. Since the Special Prosecutor has disclaimed any further interest in the materials for purposes of possible criminal investigations, the only conceivably remaining judicial need is to preserve the materials for possible use in civil litigation between private parties. The admittedly important interests in the enforcement of the criminal law, recognized in United States v. Nixon, are no longer pressed by the Government.
25
If there were a particularized need, the statute suffers from greater overbreadth than others we have invalidated.
26
At the time the Title I was passed, appellant had made tentative arrangements with the University of Southern California in Los Angeles for the establishment of a Presidential library, under the terms of the Presidential Libraries Act. App. 167-168. That has now ripened into a formal agreement so that in the event Title I is invalidated, appellant's historical materials will be housed in a facility on the USC campus under terms applicable to other Presidential libraries of past Presidents.
27
The Court's refusal to afford constitutional protection to such commerciai matters as bank records, California Bankers Assn. v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974), or drug prescription records, Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) only serves to emphasize the importance of truly private papers or communications, such as a personal diary or family correspondence. These private papers lie at the core of First and Fourth Amendment interests.
28
The fact that GSA initially secured possession of the Presidential papers through the agreement with the former President does not change the fact that the agency was commanded by Congress to take exclusive custody of and retain all Presidential historical materials. Moreover, everyone admits that the Act contemplates a careful screening process by Government agents. The fact that the governmental intrusion is noncriminal in nature does not, of course, render the Fourth Amendment's prohibitions inapplicable. See South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).
29
'The constitution declares that 'no bill of attainder or ex post facto law shall be passed.'
'If, however, such a bill should be passed and a person should be prosecuted under it, must the court condemn to death those victims whom the constitution endeavors to preserve?' Marbury v. Madison, 1 Cranch, at 179.
30
Title I fails to provide any procedural due process safeguards, either before or after seizure of the Presidential materials. There is no provision whatever permitting appellant to be heard in the decisionmaking process by which GSA employees will determine, with no statutory standards to guide them, whether particular materials have 'general historical value.' No time restraints are placed upon GSA's decisionmaking process, even though this Court has consistently recognized that, when dealing with First Amendment interests, the timing of governmental decisionmaking is crucial. E. g., Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). Under those holdings, any statute which separates an individual, against his will, from First Amendment protected materials must be strictly limited within a time frame. Title I, in contrast, places no limits with respect to GSA's retention of custody over appellant's papers; three years have already elapsed since seizure of the papers in question.
1
While the entire substance of this dissent is devoted to the constitutional principle of separation of powers, and not to the other issues that
the Court addresses separately, it seems to me that the Court is too facile in separating appellant's 'privacy' claims from his 'separation of powers' claims, as if they were two separate and wholly unrelated attacks on the statute. The concept of 'privacy' can be a coat of many colors, and quite differing kinds of rights to 'privacy' have been recognized in the law. Property may be 'private,' in the sense that the Fifth Amendment prohibits the Government from seizing it without paying just compensation. A dictabelt tape or diary may be 'private' in that sense, but may also be 'private' in the sense that the Fourth Amendment would prohibit an unreasonable seizure of it even though in making such a seizure the Government agreed to pay for the fair value of the diary so as not to run afoul of the Eminent Domain Clause of the Fifth Amendment. Many states have recognized a common-law 'right of privacy' first publicized in the famous Warren and Brandeis article, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). Privileges, such as the executive privilege embodied in the Constitution as a result of the separation of powers, United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), and the attorney-client privilege, recognized under case and statutory law in most jurisdictions, protect still a different form of privacy. The invocation of such privileges has the effect of protecting the privacy of a communication made confidentially to the President or by a client to an attorney; the purpose of the privilege, in each case, is to assure free communication on the part of the confidant and of the client, respectively.
The Court states, ante, at 459, that 'it is logical to assume that the tape recordings made in the Presidential offices primarily relate to the conduct and business of the Presidency.' Whatever the merits of this argument may be against a claim based on other types of privacy, it makes crystal clear that the Act is a serious intrusion upon the type of 'privacy' that is protected by the principle of executive privilege. The Court's complete separation of its discussion of the executive-privilege claim from the privacy claim thus enables it to take inconsistent positions in the different sections of its opinion.
The Court's position with respect to the appellant's individual privacy heightens my concern regarding the privacy interest served by executive privilege. In attempting to minimize the Act's impact upon appellant's privacy, the Court concludes that 'purely private papers and recordings will be returned to appellant under § 104(a)(7) of the Act.' Ibid. How-
ever, this conclusion raises more questions than answers. Under § 104(a)(7), the return of papers to the appellant is conditioned on their being 'not otherwise of general historical significance.' Given the expansive nature of this phrase, see Tr. of Oral Arg. 39, it is quite conceivable that virtually none of the papers will be returned, and the Court's representation is an empty gesture. See also § 104(a) (6). What is meant by 'purely private papers'? Is a personal letter to or from the President, but concerning the duties of the President considered 'private,' or is a document replete with personal communications, but containing some reference to the affairs of state, 'purely private'? The dictabelts of the President's personal recollections, dictated in diary form at the end of each day, are assumedly private, and are to be returned. See Tr. of Oral Arg. 59. But the dictabelt dictation is also recorded on the voice-activated White House taping system, and those tapes will be retained and reviewed. Hence, appellant's privacy interest will not be served by the return of the dictabelts, and the retention of the tapes will seriously erode Presidential communications, as discussed infra, at 553-558. By approaching these issues in compartmentalized fashion the Court obscures the fallacy of its result.
I fully subscribe to most of what is said respecting the separation of powers in the dissent of THE CHIEF JUSTICE. Indeed, it is because I so thoroughly agree with his observation that the Court's holding today is a 'grave repudiation of nearly 200 years of judicial precedent and historical practice' that I take this opportunity to write separately on the subject, thinking that its importance justifies such an opinion.
2
I am not unmindful of the excesses of Watergate, and of the impetus it gave to this legislation. However, the Court's opinion does not set forth a principled distinction that would limit the constitutionality of an Act such as this to President Nixon's papers. Absent such a distinction:
'The emotional aspects of the case make it difficult to decide dispassionately, but do not 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.' Brewer v. Williams, 430 U.S. 387, 415, 97 S.Ct. 1232, 1247, 51 L.Ed.2d 424 (1977) (Stevens, J., concurring).
3
Indeed, there is nothing in the Court's logic which would invalidate such an Act if it applied to an incumbent President during his term of office. It is of course not likely that an incumbent would sign such a measure, but a sufficiently determined Congress could pass it over his veto nonetheless.
4
In my view, the Court's decision itself, by not offering any principled basis for distinguishing appellant's case from that of any future President, has a present and future impact on the functioning of the Office of the Presidency. Hence the validity of the reasons asserted by the Court for upholding this particular Act is a subject which I find it unnecessary to address in detail. I feel bound to observe, however, that the Court, in emphasizing, e. g., ante, at 443-444, the fact that the seized papers are to be lodged with the General Services Administration, an agency created by Congress but housed in the Executive Branch of the Government, relies upon a thin reed indeed.
Control and management of an agency such as the General Services Administration is shared between the incumbent President, by virtue of his authority to nominate its officials, and Congress, by virtue of its authority to enact substantive legislation defining the functions of the agency. But the physical placement of the seized Presidential papers with such an agency does not solve the separation-of-powers problem. The principle of separation of powers is infringed when, by Act of Congress, Presidential communications are impeded because the President no longer has exclusive control over the release of his confidential papers. The fact that this Act places physical custody in the hands of the General Services Administration, rather than a congressional committee, makes little difference so far as divestiture of Presidential control is concerned.
5
My Brother STEVENS, ante, at 486-487, seeks to attribute a similar uniqueness to the precedential value of this case, but his observations are directed to appellant's bill-of-attainder claim, rather than to the separation-of-powers claim.
6
Article II empowers him 'by and with the Advice and Consent of the Senate' to make treaties, to appoint numerous other high officials of the Federal Government, to receive ambassadors and other public ministers, and to commission all the officers of the United States. That Article enjoins him to 'take Care that the Laws be faithfully executed,' and authorizes him to 'give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.' It is difficult to imagine a public office whose occupant would be more dependent upon the confidentiality of the advice which he received, and the confidentiality of the instructions which he gave, for the successful execution of his duties. This is particularly true in the area of foreign affairs and international relations; in United States v. Curtiss-Wright Corp., 299 U.S. 304, 319, 57 S.Ct. 216, 220-221, 81 L.Ed. 255 (1936), this Court stated:
'Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' Annals, 6th Cong., col. 613. The Senate Committee on Foreign Relations at a very early day in our history (February 15, 1816), reported to the Senate, among other things, as follows:
"The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution. The committee consider this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch.' U.S. Senate, Reports, Committee on Foreign Relations, vol. 8, p. 24.'
7
As a matter of original inquiry, it might plausibly be claimed that the concerns expressed by the Framers of the Constitution during their debates, and similar expressions found in the Federalist Papers, by no means require the conclusion that the Judicial Branch is the ultimate arbiter of whether one branch has transgressed upon powers constitutionally reserved to another. It could have been plausibly maintained that the Framers thought that the Constitution itself had armed each branch with sufficient political weapons to fend off intrusions by another which would violate the principle of separation of powers, and that therefore there was neither warrant nor necessity for judicial invalidation of such intrusion. But that is not the way the law has developed in this Court.
Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), not only established the authority of this Court to hold an Act of Congress unconstitutional, but the particular constitutional question which it decided was essentially a 'separation of powers' issue: whether Congress was empowered under the Constitution to expand the original jurisdiction conferred upon this Court by Art. III of the Constitution.
Any argument that Marbury is limited to cases involving the powers of the Judicial Branch and that the Court had no power to intervene in any dispute relating to separation of powers between the other two branches has been rejected in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926); Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935); and Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In so doing, these cases are entirely consistent with the following language from United States v. Nixon:
'In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), that '(i)t is emphatically the province and duty of the judicial department to say what the law is.' Id., at 177.' Id., at 703, 94 S.Ct. at 3105.
8
For the reasons set forth by THE CHIEF JUSTICE, ante, at 512, it is clear that the circumstances in United States v. Nixon, involving a narrow request for specified documents in connection with a criminal prosecution, provide no support for the Court's use of a balancing test in a case such as this where the seizure is a broad and undifferentiated intrusion into the daily operations of the Office of the President.
| 23
|
433 U.S. 672
97 S.Ct. 2907
53 L.Ed.2d 1044
Thomas BRENNANv.Kevin ARMSTRONG et al.
No. 76-809.
June 29, 1977.
PER CURIAM.
1
This school desegregation case involves the school system in the city of Milwaukee, Wis. The District Court here made various findings of segregative acts on the part of petitioner School Board members, appointed a Special Master 'to develop a plan for the desegregation of the Milwaukee public school system,' and certified its order for interlocutory appeal to the Court of Appeals for the Seventh Circuit. Amos v. Board of School Directors, 408 F. Supp. 765. The Court of Appeals, observing that there was 'an unexplained hiatus between specific findings of fact and conclusory findings of segregative intent,' stated that the District Court is 'entitled to a presumption of consistency' and concluded that the findings of the District Court were not clearly erroneous. 539 F.2d 625. Neither the District Court in ordering development of a remedial plan, nor the Court of Appeals in affirming, addressed itself to the inquiry mandated by our opinion in Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851, in which we said:
2
'If such violations are found, the District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy.' 433 U.S., at 420, 97 S.Ct., at 2766.
3
The petition for certiorari is accordingly granted, the judgment of the Court of Appeals is vacated, and the case is remanded for reconsideration in the light of Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and Dayton.
4
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
5
My concern over the Court's misuse of summary dispositions prompts this dissent.
6
The Court's explanation of its action gives the erroneous impression that the Court of Appeals' decision related to the question of what kind of remedy is approprite in this case. Quite the contrary, there was no remedy issue before the Court of Appeals, and that court considered no such issue.
7
The District Court concluded in a 60-page opinion that 'school authorities engaged in practices with the intent and for the purpose of creating and maintaining a segregated school system, and that such practices had the effect of causing current conditions of segregation in the Milwaukee public schools.' Amos v. Board of School Directors, 408 F.Supp. 765, 818 (E.D.Wis.1976). Recognizing that 'remedial efforts may well be for naught if the determination of liability is ultimately reversed on appeal,' id., at 824. Judge Reynolds certified this issue of law for interlocutory appeal. To further ensure appealability, he entered a general order enjoining future racial discrimination and directing the defendants to formulate desegregation plans. App. 140-141. This order did not call for any particular kind of desegregation plan. Thus, when the case reached the Court of Appeals, the only issue before it was the existence of a violation.1 After a careful review of the evidence, it concluded that the District Court's finding of intentional segregation was not clearly erroneous. 539 F.2d 625 (CA7 1976).
8
This Court now vacates the Court of Appeals judgment and remands for reconsideration in light of two cases. One of those cases2 is merely a routine application of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, which was correctly construed by the Court of Appeals.3 The other case is relevant to the issue of liability, if at all, only because it supports the Court of Appeals.4
9
Of course, in formulating a remedy, the District Court will need to consider cases such as Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745, and Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851, if there is any dispute about the proper scope of the remedy. But since no such issue has ever been decided by the Court of Appeals, there is nothing for it to reconsider in light of these cases. These cases certainly provide no justification for vacating the judgment affirming the District Court's conclusion that the petitioners have violated the Constitution. This Court's hasty action will unfortunately lead to unnecessary work by already overburdened Circuit Judges, who have given this case far more study than this Court had time to give it. Nevertheless, it is quite clear that after respectful reconsideration the Court of Appeals remains free to re-enter its original judgment.
10
In my opinion the petition for certiorari should be denied. However, since the Court has granted the petition, and since it is not our practice to review findings of fact which the Court of Appeals has already determined to be supported by the record, I would affirm the judgment.
1
After the case was argued in the Court of Appeals on June 2, 1976 (see 539 F.2d 625), the District Court entered a broader remedy. App. 142, 144:
2
Village of Arlington Heights v. Metropolitan Housing Development Cor., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450.
3
The Court of Appeals cited Washington v. Davis as holding that 'a 'racially discriminatory purpose' is essential to an equal protection violation in school cases, as in other cases,' and that '(p)urpose may . . . be inferred from 'the totality of the relevant facts,' which may include discriminatory impact,' 539 F.2d at 633-634, quoting Washington v. Davis, 426 U.S., at 242, 96 S.Ct., at 2049.
4
Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851, is primarily a remedy case and therefore irrelevant to the action of the Court of Appeals in this case. It does, however, stress the limitations on appellate review in this area, such as the 'clearly erroneous' rule, 433 U.S., at 417, 97 S.Ct., at 2776, which the Court of Appeals scrupulously followed, e. g., 539 F.2d, at 637.
| 12
|
433 U.S. 682
97 S.Ct. 2912
53 L.Ed.2d 1054
Thomas Leon HARRISv.State of OKLAHOMA.
No. 76-5663.
June 29, 1977.
| 01
|
433 U.S. 623
97 S.Ct. 2881
53 L.Ed.2d 1009
VENDO COMPANY, Petitioner,v.LEKTRO VEND CORPORATION et al.
No. 76-156.
Argued Jan. 19, 1977.
Decided June 29, 1977.
Rehearing Denied Oct. 3, 1977.
See 434 U.S. 881, 98 S.Ct. 242.
Syllabus
Petitioner vending machine manufacturer acquired most of the assets of another vending machine manufacturing company controlled by respondent Stoner and his family. As part of the acquisition agreement the latter company undertook to refrain from owning or managing any business engaged in the manufacture or sale of vending machines, and respondent Stoner, who was employed by petitioner as a consultant under a 5-year contract, agreed not to compete with petitioner in the manufacture of such machines during the term of his contract and for five years thereafter. Subsequently, petitioner sued respondents (Stoner, the company which he and his family controlled, and another corporation with which he had a relationship) in an Illinois state court for breach of the noncompetition covenants. Shortly thereafter, respondents sued petitioner in Federal District Court, alleging that it had violated §§ 1 and 2 of the Sherman Act in that the covenant against competition was an unreasonable restraint of trade. After protracted litigation in the state-court action, the Illinois Supreme Court affirmed a judgment in petitioner's favor in an amount exceeding $7 million. Then in the antitrust action, which, in the meantime, had lain "dormant," the District Court granted respondents' motion for a preliminary injunction against collection of the Illinois judgment, holding that § 16 of the Clayton Act (which authorizes any person to seek injunctive relief against violations of the antitrust laws) constituted an "expressly authorized" exception to the Anti-Injunction Act, 28 U.S.C. § 2283 (which prohibits a federal court from enjoining state-court proceedings "except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments"), and further found that an injunction was necessary to protect the court's jurisdiction within the meaning of that exception in § 2283 by preserving a case or controversy, since the state collection efforts would eliminate the two corporate respondents (which would then be controlled by petitioner) as plaintiffs in the federal suit. The Court of Appeals affirmed, also finding that § 16 of the Clayton Act was an express exception to § 2283, but not reaching the issue of whether an injunction was necessary to protect the District Court's jurisdiction. Held: The judgment is reversed, and the case is remanded. Pp. 630-643; 643-645.
545 F.2d 1050, reversed and remanded.
Mr. Justice Rehnquist, joined by Mr. Justice Stewart and Mr. Justice Powell, concluded that the District Court's preliminary injunction violated the Anti-Injunction Act. Pp. 630-643.
1
(a) Having been enacted long after the Anti-Injunction Act, § 16 of the Clayton Act, on its face, is far from an express exception to the Anti-Injunction Act, and may be fairly read as virtually incorporating the prohibitions of that Act. Pp. 631-632.
2
(b) The test as to whether an Act of Congress qualifies as an "expressly authorized" exception to the Anti-Injunction Act is whether the "Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding." Mitchum v. Foster, 407 U.S. 225, 238, 92 S.Ct. 2151, 2159, 32 L.Ed.2d 705. Here, while the private action conferred by § 16 of the Clayton Act meets the first part of the test in that such an action may be brought only in a federal court, it does not meet the second part of the test, since, as is demonstrated by § 16's legislative history suggesting that § 16 was merely intended to extend to private citizens the right to enjoin antitrust violations, § 16 is not an "Act of Congress (which) could be given its intended scope only by the stay of a state court proceeding." Mitchum, supra, distinguished. Pp. 632-635.
3
(c) To hold that § 16 could be given its "intended scope" only by allowing an injunction against a pending state-court action would completely eviscerate the Anti-Injunction Act, because this would mean that virtually all federal statutes authorizing injunctive relief would be exceptions to that Act. While § 16 embodies an important congressional policy favoring private enforcement of the antitrust laws, the importance of the policy to be 'protected' by an injunction under § 16 does not control for purposes of the Anti-Injunction Act, since the prohibitions of that Act exist separate and apart from the traditional principles of equity and comity that determine whether or not the state proceeding can be enjoined. Pp. 635-639.
4
(d) For an Act countenancing a federal injunction to come within the 'expressly authorized' exception to the Anti-Injunction Act, it must necessarily interact with, or focus upon, a state judicial proceeding, and § 16 of the Clayton Act is not such an Act. Pp. 640-641.
5
(e) The District Court's finding that the injunction was "necessary in aid of its jurisdiction" within the meaning of that exception to the Anti-Injunction Act is supported neither by precedent nor by the factual premises upon which such finding was based. Although such exception may be fairly read as incorporating cases where the federal court has obtained jurisdiction over a res prior to the state-court action, here both the federal and state actions are in personam actions, which traditionally may proceed concurrently, without interference from either court, and an injunction to "preserve" a case or controversy does not fit within the 'necessary in aid of its jurisdiction' exception. It does not appear that even if the two corporate respondents ceased to litigate the federal action, respondent Stoner would lose his standing to vindicate his rights, or that the two corporate defendants would necessarily be removed from the action. Pp. 641-643.
6
Mr. Justice Blackmun, joined by The Chief Justice, concluded that, although § 16 of the Clayton Act may be an 'expressly authorized' exception to the Anti-Injunction Act in limited circumstances where the state proceedings are part of a 'pattern of baseless, repetitive claims' being used as an anticompetitive device, all the traditional prerequisites for equitable relief are satisfied, and the only way to give the antitrust laws their intended scope is by staying the state proceedings, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642, the District Court failed properly to apply the California Motor Transport rule because it did not and could not find the state litigation to be part of a 'pattern of baseless, repetitive claims' being used in and of itself as an anticompetitive device, and that therefore § 16 did not itself authorize the District Court's injunction. Pp. 643-645.
7
Earl E. Pollock, Chicago, Ill., for petitioner.
8
Barnabas F. Sears, Chicago, Ill., for respondents.
9
Mr. Justice REHNQUIST announced the judgment of the Court and delivered an opinion in which Mr. Justice STEWART and Mr. Justice POWELL join.
10
* After nine years of litigation in the Illinois state courts, the Supreme Court of Illinois affirmed a judgment in favor of petitioner and against respondents in the amount of $7,363,500. Shortly afterwards the United States District Court for the Northern District of Illinois enjoined, at the behest of respondents, state proceedings to collect the judgment. 403 F. Supp. 527 (1975). The order of the United States District Court was affirmed by the Court of Appeals Court was affirmed by the Court of 1050 (1976), and we granted certiorari to consider the important question of the relationship between state and federal courts which such an injunction raises. 429 U.S. 815, 97 S.Ct. 55, 50 L.Ed.2d 74 (1976).
II
11
The Illinois state court litigation arose out of commercial dealings between petitioner and respondents. In 1959 petitioner Vendo Co., a vending machine manufacturer located in Kansas City, Mo., acquired most of the assets of Stoner Manufacturing, which was thereupon reorganized as respondent Stoner Investments, Inc. Respondent Harry H. Stoner and members of his family owned all of the stock of Stoner Manufacturing, and that of Stoner Investments. Stoner Manufacturing had engaged in the manufacture of vending machines which dispensed candy, and as a part of the acquisition agreement it undertook to refrain from owning or managing any business engaged in the manufacture or sale of vending machines. Pursuant to an employment contract, respondent Harry Stoner was employed by petitioner as a consultant for five years at a salary of $50,000, and he agreed that during the term of his contract and for five years thereafter he would not compete with petitioner in the business of manufacturing vending machines.
12
In 1965, petitioner sued respondents1 in state court for breach of these noncompetition covenants. Shortly thereafter, respondents sued petitioner in the United States District Court for the Northern District of Illinois, complaining that petitioner had violated §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. Respondents alleged that the covenants against competition were unreasonable restraints of trade because they were not reasonably limited as to time and place, and that the purpose of petitioner's state-court lawsuit was to "unlawfully harass" respondents and to "eliminate the competition" of respondents. App. 22, 25.
13
Respondents set up this federal antitrust claim as an affirmative defense to petitioner's state-court suit. Id., at 31-32. However, prior to any ruling by the state courts on the merits of this defense, respondents voluntarily withdrew it. Id., at 82.
14
The state-court litigation ran its protracted course,2 including two trials, two appeals to the State Appellate Court, and an appeal to the Supreme Court of Illinois. In September 1974, the latter court affirmed a judgment in favor of petitioner and against respondents in an amount exceeding $7 million. Vendo Co. v. Stoner, 58 Ill.2d 289, 321 N.E.2d 1. The Supreme Court of Illinois predicated its judgment on its holding that Stoner had breached a fiduciary duty owed to petitioner, rather than upon any breach of the noncompetitive covenants.3 This Court denied respondents' petition for a writ of certiorari. 420 U.S. 975, 95 S.Ct. 1398, 43 L.Ed.2d 655 (1975).
15
During the entire nine-year course of the state-court litigation, respondents' antitrust suit in the District Court was, in the words of the Court of Appeals, allowed to lie "dormant." 545 F.2d, at 1055. But the day after a Circuit Justice of this Court had denied a stay of execution pending petition for certiorari to the Supreme Court of Illinois, respondents moved in the District Court for a preliminary injunction against collection of the Illinois judgment. The District Court in due course granted this motion.
16
The court found that it "appear(ed) that the (noncompetition) covenants . . . were overly broad," 403 F.Supp., at 533, and that there was "persuasive evidence that Vendo's activities in its litigation against the Stoner interests in Illinois state court were not a genuine attempt to use the adjudicative process legitimately." Id., at 534-535. Recognizing that there is a "paucity of authority" on the issue, id., at 536, the District Court held that the injunctive relief provision of the Clayton Act, 15 U.S.C. § 26, constitutes an express exception to 28 U.S.C. § 2283, the "Anti-Injunction Act." The court further found that collection efforts would eliminate two of the three plaintiffs and thus that the injunction was necessary to protect the jurisdiction of the court, within the meaning of that exception to § 2283.
17
The Court of Appeals affirmed, finding that § 16 of the Clayton Act was an express exception to § 2283. The court did not reach the issue of whether an injunction was necessary to protect the jurisdiction of the District Court.
18
In this Court, petitioner renews its contention that principles of equity, comity, and federalism, as well as the Anti-Injunction Act, barred the issuance of the injunction by the District Court. Petitioner also asserts in its brief on the merits that the United States District Court was required to give full faith and credit to the judgment entered by the Illinois courts.4 Because we agree with petitioner that the District Court's order violated the Anti-Injunction Act, we reach none of its other contentions.
III
19
The Anti-Injunction Act, 28 U.S.C. § 2283, provides:
20
"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."
21
The origins and development of the present Act, and of the statutes which preceded it, have been amply described in our prior opinions and need not be restated here. The most recent of these opinions are Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), and Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970). Suffice it to say that the Act is an absolute prohibition against any injunction of any state-court proceedings, unless the injunction falls within one of the three specifically defined exceptions in the Act. The Act's purpose is to forestall the inevitable friction between the state and federal courts that ensues from the injunction of state judicial proceedings by a federal court. Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 9, 60 S.Ct. 215, 218, 84 L.Ed. 447 (1940). Respondents' principal contention is that, as the Court of Appeals held, § 16 of the Clayton Act, which authorizes a private action to redress violations of the antitrust laws, comes within the 'expressly authorized' exception to § 2283.
22
We test this proposition mindful of our admonition that
23
"(a)ny doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy." Atlantic Coast Line R. Co., supra, 398 U.S. at 297, 90 S.Ct. at 1748.
24
This cautious approach is mandated by the "explicit wording of § 2283" and the "fundamental principle of a dual system of courts." Ibid. We have no occasion to construe the section more broadly:
25
"(It is) clear beyond cavil that the prohibition is not to be whittled away by judicial improvisation." Amalgamated Clothing Workers of America v. Richman Bros. Co., 348 U.S. 511, 514, 75 S.Ct. 452, 454, 99 L.Ed. 600 (1955).
26
Our inquiry, of course, begins with the language of § 16 of the Clayton Act, which is the statute claimed to "expressly authorize" the injunction issued here. It provides, in pertinent part:
27
"(A)ny person . . . shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by violation of the antitrust laws . . . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings . . .." 38 Stat. 737, 5 U.S.C. § 26.
28
On its face, the language merely authorizes private injunctive relief for antitrust violations. Not only does the statute not mention § 2283 or the enjoining of state-court proceedings, but the granting of injunctive relief under § 16 is by the terms of that section limited to "the same conditions and principles" employed by courts of equity, and by "the rules governing such proceedings." In 1793 the predecessor to § 2283 was enacted specifically to limit the general equity powers of a federal court. Smith v. Apple, 264 U.S. 274, 279, 44 S.Ct. 311, 313, 68 L.Ed. 678 (1924); Toucey v. New York Life Ins. Co., 314 U.S. 118, 130 n. 2, 62 S.Ct. 139, 142, 86 L.Ed. 100 (1941). When § 16 was enacted in 1914 the bar of the Anti-Injunction Act had long constrained the equitable power of federal courts to issue injunctions. Thus, on its face, § 16 is far from an express exception to the Anti-Injunction Act, and may be fairly read as virtually incorporating the prohibitions of the Anti-Injunction Act with restrictive language not found, for example, in 42 U.S.C. § 1983. See discussion of Mitchum v. Foster, infra.
29
Respondents rely, as did the Court of Appeals and the District Court, on the following language from Mitchum:
30
". . . (I)t is clear that, in order to qualify as an 'expressly authorized' exception to the anti-injunction statute, an Act of Congress must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state court proceeding. This is not to say that in order to come within the exception an Act of Congress must, on its face and in every one of its provisions, be totally incompatible with the prohibition of the anti-injunction statute. The test, rather, is whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding." 407 U.S., at 237-238, 92 S.Ct., at 2159. (Emphasis added, footnote omitted.)
31
But we think it is clear that neither this language from Mitchum nor Mitchum's ratio decidendi supports the result contended for by respondents.
32
The private action for damages conferred by the Clayton Act is a "uniquely federal right or remedy," in that actions based upon it may be brought only in the federal courts. See General Investment Company v. Lake Shore & Mich. So. R. Co., 260 U.S. 261, 287, 43 S.Ct. 106, 117, 67 L.Ed. 244 (1922). It thus meets the first part of the test laid down in the language quoted from Mitchum.
33
But that authorization for private actions does not meet the second part of the Mitchum test; it is not an "Act of Congress . . . (which) could be given its intended scope only by the stay of a state court proceeding," 407 U.S., at 238, 92 S.Ct., at 2160. Crucial to our determination in Mitchum that 42 U.C.S. s 1983 fulfilled this requirement but wholly lacking here was our recognition that one of the clear congressional concerns underlying the enactment of § 1983 was the possibility that state courts, as well as other branches of state government, might be used as instrument to deny citizens their rights under the Federal Constitution. This determination was based on our review of the legislative history of § 1983; similar review of the legislative history underlying § 16 demonstrates that that section does not meet this aspect of the Mitchum test.
34
Section 1983 on its face, of course, contains no reference to § 2283, nor does it expressly authorize injunctions against state-court proceedings. But, as Mitchum recognized, such language need not invariably be present in order for a statute to come within the "expressly authorized" exception if there exists sufficient evidence in the legislative history demonstrating that Congress recognized and intended the statute to authorize injunction of state-court proceedings. In Part IV of our opinion in Mitchum we examined in extenso the purpose and legislative history underlying § 1983, originally § 1 of the Civil Rights Act of 1871. We recounted in detail that statute's history which made it abundantly clear that by its enactment Congress demonstrated its direct and explicit concern to make the federal courts available to protect civil rights against unconstitutional actions of state courts.
35
We summarized our conclusion in these words:
36
"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." 407 U.S., at 242, 92 S.Ct., at 2162.
37
Thus, in Mitchum, absence of express language authorization for enjoining state-court proceedings in § 1983 actions was cured by the presence of relevant legislative history. In this case, however, neither the respondents nor the courts below have called to our attention any similar legislative history in connection with the enactment of § 16 of the Clayton Act. It is not suggested that Congress was concerned with the possibility that state-court proceedings would be used to violate the Sherman or Clayton Acts. Indeed, it seems safe to say that of the many and varied anticompetitive schemes which § 16 was intended to combat, Congress in no way focused upon a scheme using litigation in the state courts. The relevant legislative history of § 16 simply suggests that in enacting § 16 Congress was interested in extending the right to enjoin antitrust violations to private citizens.5 The critical aspects of the legislative history recounted in Mitchum which led us to conclude that § 1983 was within the "expressly authorized" exception to § 2283 are wholly absent from the relevant history of § 16 of the Clayton Act. This void is not filled by other evidence of congressional authorization.
38
Section 16 undoubtedly embodies congressional policy favoring private enforcement of the antitrust laws, and undoubtedly there exists a strong national interest in antitrust enforcement.6 However, contrary to certain language in the opinion of the District Court, 403 F.Supp., at 536, the "importance of the federal policy to be protected" by the injunction is not the focus of the inquiry. Presumptively, all federal policies enacted into law by Congress are important, and there will undoubtedly arise particular situations in which a particular policy would be fostered by the granting of an injunction against a pending state-court action. If we were to accept respondents' contention that § 16 could be given its "intended scope" only by allowing such injunctions, then § 2283 would be completely eviscerated since the ultimate logic of this position can mean no less than that virtually all federal authorizing injunctive relief are exceptions to § 2283 statutes.7 Certainly all federal injunctive statutes are enacted to provide for the suspension of activities antithetical to the federal policies underlying the injunctive statute or related statutes. If the injunction would issue under the general rules of equity practice requiring, inter alia, a showing of irreparable injury but for the bar of § 2283, then clearly § 2283 in some sense may be viewed as frustrating or restricting federal policy since the activity inconsistent with the federal policy may not be enjoined because of § 2283's bar.8 Thus, were we to accede to respondent's interpretation of the "intended scope" language, an exception to § 2283 would always be found to be "necessary" to give the injunctive Act its full intended scope, and § 2283 would place no additional limitation on the right to enjoin state proceedings. The Anti-Injunction Act, a fixture in federal law since 1793, would then be a virtual dead letter whenever the plaintiff seeks an injunction under a federal injunctive statute. Whether or not the state proceeding could be enjoined would rest solely upon the traditional principles of equity and comity. However, as we emphasized in Mitchum, 407 U.S., at 243, 92 S.Ct. at 2162, the prohibitions of § 2283 exist separate and apart from these traditional principles, and we cannot read the 'intended scope' language as rendering this specific and longstanding statutory provision inoperative simply because important federal policies are fostered by the statute under which the injunction is sought. Congress itself has found that these policies, in the ordinary case, must give way to the policies underlying § 2283. Given the clear prohibition of § 2283, the courts will not sit to balance and weigh the importance of various federal policies in seeking to determine which are sufficiently important to override historical concepts of federalism underlying § 2283; by the statutory scheme it has enacted, Congress has clearly reserved this judgment unto itself.9
39
Our conclusion that the "importance," or the potential restriction in scope, of the federal injunction statute does not control for § 2283 purposes is consistent with the analysis of those very few statutes which we have in the past held to be exceptions to the Anti-Injunction Act. See Mitchum, supra, at 234-235, and nn. 12-16, 92 S.Ct. 2157-2158. The original version of the Anti-Injunction Act itself was amended in 1874 to allow federal courts to enjoin state-court proceedings which interfere with the administration of a federal bankruptcy proceeding. Rev.Stat. § 720. The Interpleader Act of 1926, 28 U.S.C. § 2361, the Frazier-Lemake Act, 11 U.S.C. § 203 (1940 ed.), and the Federal Habeas Corpus Act, 28 U.S.C. § 2251, while not directly referring to § 2283, have nonetheless explicitly authorized injunctive relief against state-court proceedings. The Act of 1851 limiting liability of shipowners, 46 U.S.C. § 185, provided that, after deposit of certain funds in the court by the shipowner, "all claims and proceedings against the owner with respect to the matter in question shall cease." The statutory procedures for removal of a case from state court to federal court provide that the removal acts as a stay of the state-court proceedings. 28 U.S.C. § 1446(e).
40
By limiting the statutory exceptions of § 2283 and its predecessors to these few instances, we have clearly recognized that the Act countenancing the federal injunction must necessarily interact with, or focus upon, a state judicial proceeding.10 Section 16 of the Clayton Act, which does not by its very essence contemplate or envision any necessary interaction with state judicial proceedings, is clearly not such an Act.
IV
41
Although the Court of Appeals did not reach the issue, the District Court found that, in addition to being "expressly authorized," the injunction was "necessary in aid of its jurisdiction," a separate exception to § 2283. The rationale of the District Court was as follows:
42
"The Court also holds that § 2283 authorizes an injunction here because further collection efforts would eliminate two plaintiffs, Stoner Investments and Lektro-Vend Corp., as parties under the case or controversy provisions of Article III since they would necessarily be controlled by Vendo. Vendo's offer to place the Stoner Investment and Lektro-Vend stock under control of the Court does not meet this problem because as a matter of substance Vendo would control both plaintiff and defendant, requiring dismissal under Article III. Thus the injunction is also necessary to protect the jurisdiction of the Court." 403 F.Supp., at 536-537.
43
In Toucey v. New York Life Insurance Company, 314 U.S., at 134-135, 62 S.Ct., at 144, we acknowledged the existence of an historical exception to the Anti-Injunction Act in cases where the federal court has obtained jurisdiction over the res, prior to the state-court action. Although the "necessary in aid of" exception to § 2283 may be fairly read as incorporating this historical in rem exception, see C. Wright, Law of Federal Courts § 47, p. 204 (3d ed. 1976), the federal and state actions here are simply in personam. The traditional notion is that in personam actions in federal and state court may proceed concurrently, without interference from either court, and there is no evidence that the exception to § 2283 was intended to alter this balance. We have never viewed parallel in personam actions as interfering with the jurisdiction of either court; as we stated in Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922):
44
"(A)n action brought to enforce (a personal liability) does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata . . .." Id., at 230, 43 S.Ct., at 81 (emphasis added).
45
No case of this Court has ever held that an injunction to "preserve" a case or controversy fits within the "necessary in aid of its jurisdiction" exception; neither have the parties directed us to any other federal court decisions so holding.
46
The District Court's legal conclusion is not only unsupported by precedent, but the factual premises upon which it rests are not persuasive. First, even if the two corporate plaintiffs would cease to litigate the case after execution of the state-court judgment, there is no indication that Harry Stoner himself would lose his standing to vindicate his rights, or that the case could not go forward. Nor does it appear that the two corporate plaintiffs would necessarily be removed from the lawsuit. As far as the record indicates, there are currently minority shareholders in those corporations whose ownership interests would not be affected by petitioner's acquisition of majority stock control of the corporations. Under the applicable rules for shareholder derivative actions, see Fed.Rule Civ.Proc. 23.1, the shareholders could presumably pursue the corporate rights of action, which would inure to their benefit, even if the corporations themselves chose not to do so. Finally, petitioner offered to enter a consent decree which assuredly would eliminate any possibility of petitioner's acquiring control of the corporations. See App. 209-210, 258. The injunction in this case was therefore even under the District Courts' legal theory, not necessary in aid of that court's jurisdiction.
47
Our conclusion that neither of the bases relied upon by the District Court constitutes an exception to § 2283 is more than consistent with the recognition that any doubt must be resolved against the finding of an exception to § 2283, Atlantic Coast Line R. Co., 398 U.S., at 297, 90 S.Ct., at 1748, a holding that there is an exception present in this case would demonstrably involve "judicial improvisation." Amalgamated Clothing Workers, 348 U.S., at 514, 75 S.Ct., at 454.
48
Reversed and remanded.
49
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in the result.
50
Although I agree that the decision of the Court of Appeals should be reversed, I do so for reasons that differ significantly from those expressed by the plurality. According to the plurality's analysis, § 16 of the Clayton Act, 15 U.S.C. § 26, is not an expressly authorized exception to the Anti-Injunction Act, 28 U.S.C. § 2283, because it is not "an 'Act of Congress . . . (which) could be given its intended scope only by the stay of a state-court proceeding.' (Mitchum v. Foster, 407 U.S. 225, 238, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972))." Ante, at 632. I do not agree that this is invariably the case; since I am of the opinion, however, that the state-court proceeding in this case should not have been enjoined by the federal court, I concur in the result.
51
In my opinion, application of the Mitchum test for deciding whether a statute is an "expressly authorized" exception to the Anti-Injunction Act shows that § 16 is such an exception under narrowly limited circumstances. Nevertheless, consistently with the decision in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972),* I would hold that no injunction may issue against currently pending state-court proceedings unless those proceedings are themselves part of a "pattern of baseless, repetitive claims" that are being used as an anticompetitive device, all the traditional prerequisites for equitable relief are satisfied, and the only way to give the antitrust laws their intended scope is by staying the state proceedings. Cf. California Motor Transport Co. v. Trucking Unlimited, 404 U.S., at 513, 92 S.Ct., at 613. See also Otter Tail Power Co. v. United States, 410 U.S. 366, 380, 93 S.Ct. 1022, 1030, 35 L.Ed.2d 359 (1973).
52
In my view, the District Court failed properly to apply the California Motor Transport rule. The court believed that it was enough that Vendo's activities in the single state-court proceeding involved in this case were not genuine attempts to use the state adjudicative process legitimately. In reaching this conclusion, the court looked to Vendo's purpose in conducting the state litigation and to several negative consequences that the litigation had for respondents. The court, however, did not find a "pattern of baseless, repetitive claims," nor could it have done so under the circumstances. Only one state-court proceeding was involved in this case, and it resulted in the considered affirmance by the Illinois Supreme Court of a judgment for more than $7 million. In my opinion, therefore, it cannot be said on this record that Vendo was using the state-court proceeding as an anticompetitive device in and of itself. Thus, I believe that § 16 itself did not authorize the injunction below, and on this ground I would reverse.
53
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice MARSHALL join, dissenting.
54
Quite properly, the plurality does not question the merits of the preliminary injunction entered by the United States District Court for the Northern District of Illinois staying proceedings in the Illinois courts. It was predicated on appropriate findings of fact,1 it was entered by a District Judge whose understanding of the federal antitrust laws was unique,2 and its entry was affirmed unanimously by the Court of Appeals.
55
Judge McLaren found substantial evidence that petitioner intended to monopolize the relevant market; that one of the overt acts performed in furtherance thereof that the state litigation had already severely harassing and eliminating competition; would prevent, the marketing of a promising, newly developed machine which would compete with petitioner's products. 403 F.Supp. 527, 534-535, 538 (1975).3 The Court of Appeals implicitly endorsed these findings when it noted that "(h)ere Vendo seeks to thwart a federal antitrust suit by the enforcement of state court judgments which are alleged to be the very object of antitrust violations." 545 F.2d 1050, 1057 (CA7 1976).
56
The question which is therefore presented is whether the anti-injunction statute4 deprives the federal courts of power to stay state-court litigation which is being prosecuted in direct violation of the Sherman Act. I cannot believe that any of the members of Congress who unanimously enacted that basic charter of economic freedom5 in 1890 would have answered that question the way the plurality does today.
57
* The plurality relies on the present form of a provision of the Judiciary Act of 1793.6 In the ensuing century, there were changes in our economy which persuaded the Congress that the state courts could not adequately deal with contracts in restraint of trade that affected commerce in more than one jurisdiction.7 The Sherman Act was enacted virtually unanimously in 1890 to protect the national economy from the pernicious effects of regulation by private cartel and to vest the federal courts with jurisdiction adequate to "exert such remedies as would fully accomplish the purposes intended."8
58
Between 1890 and 1914, although private litigants could recover treble damages, only the United States could invoke the jurisdiction of the federal courts to prevent and restrain violations of the Sherman Act.9 When Congress authorized the federal courts to grant injunctive relief in private antitrust litigation, it conferred the same broad powers that the courts possess in cases brought by the Government.10 Section 16 of the Clayton Act expressly authorizes injunctions against "a violation of the antitrust laws."11
59
The scope of the jurisdictional grant is just as broad as the definition of a violation of the antitrust laws. That definition was deliberately phrased in general language to be sure that "every conceivable act which could possibly come within the spirit or purpose of the prohibition" would be covered by the statute, regardless of whether or not the particular form of restraint was actually foreseen by Congress.12 In the decades following the formulation of the Rule of Reason in 1911, this Court has made it perfectly clear that the prosecution of litigation in a state court may itself constitute a form of violation of the federal statute.
60
Thus, the attempt to enforce a patent obtained by fraud,13 or a patent known to be invalid for other reasons,14 may constitute an independent violation of the Sherman Act; and such litigation may be brought in a state court.15 The prosecution of frivolous claims and objection before regulatory bodies, including state agencies, may violate the antitrust laws.16 The enforcement of restrictive provisions in a license to use a patent or a trademark17 may violate the Sherman Act; such enforcement may, of course, be sought in the state courts. Similarly, the provisions of a lease,18 or a fair trade agreement,19 may become the focus of enforcement litigation which has a purpose or effect of frustrating rights guaranteed by the antitrust laws, either in a state or federal court.20 Indeed, the enforcement of a covenant not to compete the classic example of a contract in restraint of trade typically takes place in a state court.21
61
These examples are sufficient to demonstrate that "litigation in state courts may constitute an antitrust violation . . .." ante, at 635 n. 6. Since the judicial construction of a statute is as much a part of the law as the words written by the legislature, the illegal use of state-court litigation as a method of monopolizing or restraining trade is as plainly a violation of the antitrust laws as if Congress had specifically described each of the foregoing cases as an independent violation. The language in § 16 of the Clayton Act which expressly authorizes injunctions against violations of the antitrust laws is therefore applicable to this species of violation as well as to other kinds of violations.
62
Since § 16 of the Clayton Act is an Act of Congress which expressly authorizes an injunction against a state-court proceeding which violates the antitrust laws, the plain language of the anti-injunction statute excepts this kind of injunction from its coverage.22
II
63
There is nothing in this Court's precedents which is even arguably inconsistent with this rather obvious reading of the statutory language.23 On at least three occasions the Court has held that general grants of federal jurisdiction which make no mention of either state-court proceedings, or of the anti-injunction statute, are within the "expressly authorized" exception. Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U.S. 578, 599-601, 3 S.Ct. 379, 392-394, 27 L.Ed. 1038;24 Porter v. Dicken, 328 U.S. 252, 66 S.Ct. 1094, 90 L.Ed. 1203;25 Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705.
64
In Mitchum the Court made it clear that a statute may come within the "expressly authorized" exception to § 2283 even though it does not mention the anti-injunction statute or contain any reference to state-court proceedings, provided that it creates a uniquely federal right or remedy that could be frustrated if the federal court were not empowered to enjoin the state proceeding.26 The Court then formulated and applied this test: "The test . . . is whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding." 407 U.S., at 238, 92 S.Ct., at 2160.
65
Section 16 of the Clayton Act created a federal remedy which can only be given its intended scope if it includes the power to stay state-court proceedings in appropriate cases. As one of the sponsors of the statute explained, under "this most excellent provision a man does not have to wait until he is ruined in his business before he has his remedy."27 But if the plurality's interpretation of the legislation were correct, a private litigant might indeed be "ruined in his business before he has his remedy" against state-court litigation seeking enforcement of an invalid patent, a covenant not to compete, or an executory merger agreement, to take only a few obvious examples of antitrust violations that might be consummated by state-court litigation.
66
The plurality assumes that Congress intended to distinguish between illegal state proceedings which are already pending and those which have not yet been filed at the time of a federal court's determination that a violation of the antitrust laws has been consummated; the federal court may enjoin the latter, but is powerless to restrain the former. See ante, at 635-636, n. 6. Nothing in the history of the anti-injunction statute suggests any such logic-chopping distinction.28 Indeed, it is squarely at odds with Senator Sherman's own explanation of the intended scope of the statutory power "to issue all remedial process or writs proper and necessary to enforce its provisions . . .."29 It would demean the legislative process to construe the eloquent rhetoric which accompanied the enactment of the antitrust laws as implicitly denying federal courts the power to restrain illegal state-court litigation simply because it was filed before the federal case was concluded.30 A faithful application of the rationale of Mitchum v. Foster requires a like result in this case.
III
67
The plurality expresses the fear that if the Clayton Act is given its intended scope, the anti-injunction statute "would be completely eviscerated" since there are 26 other federal statutes which may also be within the "expressly authorized" exception. Ante, at 636-637, n. 7. That fear, stated in its strongest terms, is that in the 184 years since the anti-injunction statute was originally enacted, there are 26 occasions on which Congress has qualified its prohibition to some extent. There are at least three reasons why this argument should not cause panic.
68
First, the early history of the anti-injunction statute indicates that it was primarily intended to prevent the federal courts from exercising a sort of appellate review function in litigation in which the state and federal courts had equal competence. The statute imposed a limitation on the general equity powers of the federal courts which existed in 1793, and which have been exercised subsequently in diversity and other private litigation. But the anti-injunction statute has seldom, if ever, been construed to interfere with a federal court's power to implement federal policy pursuant to an express statutory grant of federal jurisdiction.31 Although there is no need to resolve the question in this case, I must confess that I am not now persuaded that the concept of federalism is necessarily inconsistent with the view that the 1793 Act should be considered wholly inapplicable to later enacted federal statutes that are enforceable exclusively in federal litigation.32 If a fair reading of the jurisdictional grant in any such statute does authorize an injunction against state-court litigation frustrating the federal policy, nothing in our prior cases would foreclose the conclusion that it is within the "expressly authorized" exception to § 2283.
69
Second, in any event, the question whether the Packers and Stockyards Act of 1921, for example, gives the federal court the power to enjoin state litigation has little if any, relevance to the issues presented by this case. Whatever the answer to that question may be,33 that 56-year-old statute will not exacerbate federal-state relations and jeopardize the vitality of "our federalism." Indeed, even if all the statutes identified by the plurality are within the "expressly authorized" exception to § 2283, it is extremely doubtful that they would generate as much, or as significant, litigation as either the Civil Rights Act of 1871 or the antitrust laws.34 The answer to the important question presented by this case should not depend on speculation about potential consequences for other statutes of relatively less importance to the economy and the Nation.
70
Third, concern about the Court's ability either to enlarge or to contain the exceptions to the anti-injunction statute, ante, at 635-639, is disingenuous at best. As originally enacted in 1793, the statute contained no express exception at all. Those few that were recognized in the ensuing century and a half were the product of judicial interpretation of the statute's prohibition in concrete situations. The codification of the Judicial Code, in 1948 restated the exceptions in statutory language, but was not intended to modify the Court's power to accommodate the terms of the statute to overriding expressions of national policy embodied in statutes like the Ku Klux Klan Act of 1871 or the Sherman Act of 1890.35
IV
71
Since the votes of THE CHIEF JUSTICE and Mr. Justice BLACKMUN are decisive, a separate comment on Mr. Justice BLACKMUN's opinion concurring in the result is required.
72
His agreement with the proposition that an injunction properly entered pursuant to § 16 of the Clayton Act is within the 'expressly authorized' exception to the anti-injunction statute establishes that proposition as the law for the future. His view that § 16 did not authorize the preliminary injunction entered by Judge McLaren is dispositive of this litigation but, for reasons which may be briefly summarized, is not a view that finds any support in the law.
73
Unlike the plurality, which would draw a distinction between ongoing litigation and future litigation, ante, at 635-636, n. 6, Mr. Justice BLACKMUN differentiates between a violation committed by a multiplicity of lawsuits and a violation involving only one lawsuit. The very case on which he relies rejects that distinction. In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 512-513, 92 S.Ct. 609, 613, 30 L.Ed.2d 642, the Court stated:
74
"Yet unethical conduct in the setting of the adjudicatory process often results in sanctions. Perjury of witnesses is one example. Use of a patent obtained by fraud to exclude a competitor from the market may involve a violation of the antitrust laws, as we held in Walker Process Equipment v. Food Machinery & Chemical Corp., 382 U.S. 172, 175-177, 86 S.Ct. 347, 349-350, 15 L.Ed.2d 247. Conspiracy with a licensing authority to eliminate a competitor may also result in an antitrust transgression. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 707, 82 S.Ct. 1404, 1414, 8 L.Ed.2d 777; Harman v. Valley National Bank, 339 F.2d 564 (CA9 1964). Similarly, bribery, of a public purchasing agent may constitute a violation of § 2(c) of the Clayton Act, as amended by the Robinson-Patman Act. Rangen, Inc. v. Sterling Nelson & Sons, 351 F.2d 851 (CA9 1965).
75
"There are many other forms of illegal and reprehensible practice which may corrupt the administrative or judicial processes and which may result in antitrust violations."
76
Each of the examples given in this excerpt from the California Motor Transport opinion involves a single use of the adjudicatory process to violate the antitrust laws. Manifestly, when Mr. Justice Douglas wrote for the Court in that case and described 'a pattern of baseless, repetitive claims,' id., at 513, 92 S.Ct., at 613, as an illustration of an antitrust violation, he did not thereby circumscribe the category to that one example. Nothing in his opinion even remotely implies that there would be any less reason to enjoin the "(u)se of a patent obtained by fraud to exclude a competitor from the market," id., at 512, 92 S.Ct., at 613, for example, than to enjoin the particular violation before the Court in that case.
77
In this case we are reviewing the affirmance by the Court of Appeals of an order granting a preliminary injunction. Affirmance was required unless the exercise of the District Court's discretion was clearly erroneous. And when both the District Court and the Court of Appeals are in agreement, the scope of review in this Court is even more narrow, Faulkner v. Gibbs, 338 U.S. 267, 268, 70 S.Ct. 25, 94 L.Ed. 62; United States v. Dickinson, 331 U.S. 745, 751, 67 S.Ct. 1382, 1386, 91 L.Ed. 1789; Allen v. Trust Co., 326 U.S. 630, 636, 66 S.Ct. 389, 392, 90 L.Ed. 367. Without the most careful review of the record, and the findings and conclusions of the District Court, it is most inappropriate for this Court to reverse on the basis of a contrary view of the facts of the particular case.
78
The mere fact that the Illinois courts concluded that petitioner's state-law claim was meritorious does not disprove the existence of a serious federal antitrust violation. For if it did, invalid patents, price-fixing agreements, and other illegal covenants in restraint of trade would be enforceable in state courts no matter how blatant the violation of federal law.
V
79
Apart from the anti-injunction statute, petitioner has argued that principles of equity, comity, and federalism create a bar to injunctive relief in this case. Brief for Petitioner 36-39. This argument is supported by three facts: The Illinois litigation was pending for a period of nine years; the Illinois Supreme Court concluded that respondents were guilty of a breach of fiduciary duty; and respondents withdrew their antitrust defense from the state action.
80
Unfortunately, in recent years long periods of delay have been a characteristic of litigation in the Illinois courts. That is not a reason for a federal court to show any special deference to state courts; quite the contrary, it merely emphasizes the seriousness of any decision by a federal court to abstain, on grounds of federalism, from the prompt decision of a federal question.
81
The Illinois Supreme Court's conclusion that respondents had violated a fiduciary obligation and that petitioner was entitled to a large damages recovery rested on that court's appraisal of the legality of a covenant in restraint of trade.36 The fact that the covenant not to compete is valid as a matter of state law is irrelevant to the federal antitrust issue. If, for example, instead of a contract totally excluding respondents from the relevant market, the parties had agreed on a lesser restraint which merely required respondents to sell at prices fixed by petitioner, the Illinois court might also have concluded that respondents were bound by the contract even though the federal courts would have found it plainly violative of the Sherman Act. The Illinois decision on the merits merely highlights the fact that state and federal courts apply significantly different standards in evaluating contracts in restraint of trade.37
82
That fact provides the explanation for respondents' decision to withdraw their federal antitrust defense from the Illinois litigation and to present it to the federal courts. Congress has granted the federal courts exclusive jurisdiction over the prosecution of private antitrust litigation.38 Since the state courts do not have the power to award complete relief for an antitrust violation, since state judges are unfamiliar with the complexities of this area of the law, and since state procedures are sometimes unsatisfactory for cases of nationwide scope, no adverse inference should be drawn from a state-court defendant's election to reserve his federal antitrust claim for decision by a federal court.
83
Indeed, since these respondents made that election, and since Congress has withheld jurisdiction of antitrust claims from the state courts, the plurality properly ignores the argument that principles of federalism require abstention in this case. For a ruling requiring the federal court to abstain from the decision of an antitrust issue that might have been raised in a state-court proceeding would be tantamount to holding that the federal defense must be asserted in the state action. Such a holding could not be reconciled with the congressional decision to confer exclusive jurisdiction of the private enforcement of the antitrust laws on the federal courts. Quite plainly, therefore, this is not the kind of case in which abstention is even arguably proper.
84
When principles of federalism are invoked to defend a violation of the Sherman Act, one is inevitably reminded of the fundamental issue that was resolved only a few years before the anti-injunction statute was passed. Perhaps more than any other provision in the Constitution, it was the Commerce Clause that transformed the ineffective coalition created by the Articles of Confederation into a great Nation.
85
"It was . . . to secure freedom of trade, to break down the barriers to its free flow, that the Annapolis Convention was called, only to adjourn with a view to Philadelphia. Thus the generating source of the Constitution lay in the rising volume of restraints upon commerce which the Confederation could not check. These were the proximate cause of our national existence down to today.
86
"So by a stroke as bold as it proved successful, they founded a nation, although they had set out only to find a way to reduce trade restrictions. So also they solved the particular problem causative of their historic action, by introducing the commerce clause in the new structure of power.
87
". . . On this fact as much as any other we may safely say rests the vast economic development and present industrial power of the nation. To it may be credited largely the fact we are an independent pendent and democratic country today." W. Rutledge, A Declaration of Legal Faith 25-27 (1947).
88
Only by ignoring this chapter in our history could we invoke principles of federalism to defeat enforcement of the "Magna Carta of free enterprise"39 enacted pursuant to Congress' plenary power to regulate commerce among the States.
89
I respectfully dissent.
1
In addition to respondents Stoner and Stoner Manufacturing, petitioner also sued respondent Lektro-Vend Corp. Lektro-Vend had developed a radically new vending machine, and it was Stoner's relationship with Lektro-Vend that formed the basis of the lawsuit.
2
The Court of Appeals' summary of the state-court litigation is illustrative:
"The suit was filed in Kane County, Illinois on August 10, 1965; the complaint charged breach of noncompetition covenants; an amended complaint also charged theft of trade secrets. After a bench trial the court on December 16, 1966 found for Vendo. Judgments against Stoner for $250,000 and against both defendants for $1,100,000 were granted. Stoner and Stoner Investments were enjoined from further acts of competition.
"An appeal was taken to the Appellate Court of Illinois. That court entered its decision on January 30, 1969, . . . 105 Ill.App.2d 261, 245 N.E.2d 263. The court held that no trade secrets were involved, the noncompetition covenants were valid and enforceable, and the covenants had been breached by the defendants. The grant of injunctive relief was affirmed. The court also held that though the trial court erred in striking the affirmative defense based on the federal antitrust laws, it was correct in denying the defense based on the Illinois antitrust laws. The cause was remanded for a determination of damages and further proceedings.
"Upon remand the defendant withdrew its affirmative defense asserted under the federal antitrust laws. The trial court, after hearing evidence, entered judgments against Stoner and Stoner Investments which totaled $7,363,500.
"Upon a second appeal to the Illinois Appellate Court, the court decided, on September 12, 1973, Vendo Co. v. Stoner, 13 Ill.App.3d 291, 300 N.E.2d 632, that the trial court erred in the measurement of damages. The case was remanded for assessment of damages in accordance with the Appellate Court's original opinion.
"Upon appeal to the Illinois Supreme Court on September 27, 1974, . . . 58 Ill.2d 289, 321 N.E.2d 1, the appellate court was reversed and the trial court's judgments were affirmed. The Supreme Court in deciding the case constructed a different theory of recovery the breach of a fiduciary obligation on the part of Stoner than had been asserted by Vendo." 545 F.2d 1050, 1055 n. 4 (CA7 1976).
3
"Quite apart from any liability which may be predicated upon a breach of the covenants against competition contained in the sales agreement and the employment contract, it is clear that Stoner violated his fiduciary duties to plaintiff during the period when he was a director and an officer of plaintiff." 58 Ill.2d, at 303, 321 N.E.2d, at 9.
4
This issue was not presented to this Court in the petition for certiorari, and the Court of Appeals did not discuss it in its opinion.
5
Prior to the enactment of § 16, private injunctive relief was not authorized for antitrust violations. Paine Lumber Co. v. Neal, 244 U.S. 459, 37 S.Ct. 718, 61 L.Ed. 1256 (1917). As far as the legislative history indicates, the sole purpose of § 16 (§ 14 in the original drafts) was to extend to private parties the right to sue for injunctive relief. The following passage, taken in its entirety from H.R.Rep. No. 627, 63d Cong., 2d Sess., 21 (1914), demonstrates what Congress had in mind in enacting § 16:
"Section 14 authorizes a person, firm, or corporation or association to sue for and have injunctive relief against threatened loss or damage by a violation of the antitrust laws, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity under the rules governing such proceedings. Under section 7 of the act of July 2, 1890, a person injured in his business and property by corporations or combinations acting in violation of the Sherman antitrust law, may recover loss and damage for such wrongful act. There is, however, no provision in the existing law authorizing a person, firm, corporation, or association to enjoin threatened loss or damage to his business or property by the commission of such unlawful acts, and the purpose of this section is to remedy such defect in the law. This provision is in keeping with the recommendation made by the President in his message to Congress on the subject of trusts and monopolies."
See also S.Rep. No. 698, 63d Cong., 2d Sess., 17-18 (1914).
6
In California Motor Transportation Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), this Court held that harassing and sham state-court proceedings of a repetitive nature could be part of an anticompetitive scheme or conspiracy. In Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973), one of the allegations was that the federal-court defendant had instituted and supported state-court litigation for anticompetitive purposes in violation of the antitrust laws. The District Court had enjoined the defendant from "(i)nstituting, supporting or engaging in litigation, directly or indirectly, against cities and towns, and officials thereof, which have voted to establish municipal power systems . . ." Jurisdictional Statement, O.T.1972, No. 71-991, p. A-115. This Court vacated and remanded to the District Court for consideration, in light of the intervening decision of California Motor Transport, of whether the state-court litigation came within the "mere sham" exception announced in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). Those cases together may be cited for the proposition that repetitive, sham litigation in state courts may constitute an antitrust violation and that an injunction may lie to enjoin future state-court litigation. However, neither of those cases involved the injunction of a pending state-court proceeding, and thus the bar of § 2283 was not brought into play.
Nothing that we say today cuts back in any way on the holdings of these two cases; what we must here decide is whether such a lawsuit may be enjoined by a federal court after it has been commenced, notwithstanding the bar of the Anti-Injunction Act. While we conclude that it may not, nothing in our opinion today prevents a federal court in the proper exercise of its jurisdiction from enjoining the commencement of additional state-court proceedings if it concludes from the course and outcome of the first one that such proceedings would constitute a violation of the antitrust laws. With respect to this future litigation, the injunction will prevent even the commencement of a second such action, and the principles of federalism do not require the bar of § 2283. This distinction is totally consistent with the realization that the true bona fides of the initial state-court litigation is often not apparent:
"One claim, which a court or agency may think baseless, may go unnoticed; but a pattern of baseless, repetitive claims may emerge which leads the factfinder to conclude that the administrative and judicial processes have been abused." California Motor Transport, supra, 404 U.S., at 513, 92 S.Ct. at 613.
Any "disadvantage" to which the federal plaintiff is put in the initial proceeding is diminished by his ability to set up the federal antitrust claim as an affirmative defense, reviewable by this Court under 28 U.S.C. § 1257(3), and his ability to sue for treble damages resulting from the vexatious prosecution of that state-court litigation.
7
Petitioner has catalogued the following federal statutes, and suggests that each would be so affected:
"E. g., 7 U.S.C. § 216 (§ 315 of the Packers and Stockyards Act of 1921); 7 U.S.C. § 2050a (Farm Labor Contractor Registration Act); 7 U.S.C. § 2305(a) (§ 6 of the Agricultural Fair Practices Act of 1967); 12 U.S.C. § 1731b(i) (§ 513 of the National Housing Act); 12 U.S.C. § 1976 (Bank Holding Company Act); 15 U.S.C. § 78aa (Securities Exchange Act of 1934); 15 U.S.C. § 298 (relating to the false stamping of gold and silver); 15 U.S.C. § 433 (providing for suits by farmers' cooperative associations against discrimination by boards of trade); 15 U.S.C. §§ 1114(2), 1116, 1121 (providing for injunctive relief against trademark infringement); 15 U.S.C. § 2073 (Consumer Product Safety Act); 15 U.S.C. § 2102 (Hobby Protection Act); 17 U.S.C. § 112 (providing for
injunctions against violation of any right secured by the copyright laws); 26 U.S.C. § 9011(b) (Presidential Election Campaign Fund Act); 29 U.S.C. § 412 (Labor-Management Reporting and Disclosure Act); 42 U.S.C. § 2000e-5 (Title VII (Equal Employment Opportunities) of the Civil Rights Act of 1964); 42 U.S.C. §§ 6305, 6395(e) (Energy Policy and Conservation Act); 45 U.S.C. § 547 (Title III of the Rail Passenger Service Act of 1970); 49 U.S.C. §§ 1(20), 322(b)(2), 916, 1017(b) (Interstate Commerce Act); 49 U.S.C. § 1487(a) (Federal Aviation Act). See also 16 U.S.C. § 1540(g) (Endangered Species Act of 1973); 33 U.S.C. § 1365 (Federal Water Pollution Control Act); 33 U.S.C. § 1415(g) (Marine Protection, Research, and Sanctuaries Act of 1972); 33 U.S.C. § 1515 (Deepwater Ports Act of 1974); 42 U.S.C. § 300j-8 (Safe Drinking Water Act); 42 U.S.C. § 1857h-2 (Clean Air Act); 42 U.S.C. § 4911 (Noise Control Act of 1972)." Reply Brief for Petitioner 10-11, n. 7.
8
Mr. Justice STEVENS in his dissent, see post, at 649-654, would conclude that since certain types of state-court litigation may violate the antitrust laws, an injunction of such litigation while pending is 'expressly authorized' under the provisions of the Anti-Injunction Act. But this conclusion does not at all follow from the premise that judicial decisions have construed the prohibition of the antitrust laws to include sham and frivolous state-court proceedings a premise with which we do not at all disagree, see n. 6, supra. The conclusion is supportable only as a matter of policy preference and not of statutory construction. Under Mr. Justice Stevens' view, all a federal court need do is find a violation of the federal statute, then by the very force of that finding "express authorization" for the statute would be presumed. But this approach flies in the face of our past decisions. For example, in Mitchum v. Foster, 407 U.S. 225, 227, 92 S.Ct. 2151, 2154, 32 L.Ed.2d 705 (1972), the petitioner had alleged that the state courts "were depriving him of rights protected by the First and Fourteenth
Amendments." Under Mr. Justice STEVENS' syllogistic formulation, since the state-court action is a violation of § 1983, the express authorization would be readily found on the face of the statute. However, the Court in Mitchum found no such ipso facto shortcut to the explicit prohibition of § 2283, but resorted to careful analysis of the legislative history in order to find evidence of congressional authorization. In short, Mr. Justice STEVENS' approach, which removes the bar of § 2283 from all federal injunctive statutes, is totally inconsistent with this Court's longstanding recognition that "(l)egislative policy is here expressed in a clear-cut prohibition qualified only by specifically defined exceptions." Amalgamated Clothing Workers v. Richman Bros. Co., 348 U.S. 511, 516, 75 S.Ct. 452, 455, 99 L.Ed. 600 (1955).
In reaching this conclusion, Mr. Justice STEVENS argues that the Anti-Injunction Act should be "considered wholly inapplicable to later enacted federal statutes that are enforceable exclusively in federal litigation." Post, at 659. But this view is inconsistent with the approach adopted by the Court in Amalgamated Clothing Workers, supra. In that case, an employer had sought an injunction against a union in state court. This Court found that the action before the state court was "outside state authority," 348 U.S., at 514, 75 S.Ct., at 454, and that jurisdiction was vested solely in the National Labor Relations Board. But the Court found that the exclusive federal jurisdiction was not sufficient to render § 2283 inapplicable. See also Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970).
We think Mr. Justice STEVENS' view tends to confuse the jurisdiction granted to federal courts by § 16 of the Clayton Act with the separate question of whether a court having such jurisdiction has also been "expressly authorize(d)" to enjoin state-court proceedings. Post, at 650-654. But the question of whether an injunction against state-court proceedings has been "expressly authorized" under § 2283 never arises unless the federal court asked to issue the injunction has subject-matter jurisdiction of the case in which the injunction is sought. Here the District Court is entirely free to proceed with the litigation on the merits of respondents' antitrust claim against petitioner, and to grant damages and such other relief as may be appropriate if it determines the issues in favor of respondents. All that we conclude is that it may not include as a part of that relief an injunction against an already pending state-court proceeding.
9
Much of Mr. Justice STEVENS' dissenting opinion is an able brief for the conceded importance of the Sherman and Clayton Acts. But however persuasive it might be in inducing Congress to lift the bar of § 2283 with respect to injunctions issued under § 16, we do not believe it is persuasive in determining whether, under the present state of the law, Congress has in fact "expressly authorized" the injunction issued by the District Court here. For example, Mr. Justice STEVENS laments that state-court proceedings may now become the vehicles by which an antitrust violator may put one independent businessman after another out of business. See post, at 652-654, 657. Federal courts are able to enjoin future repetitive litigation, see discussion of California Motor Transport and Otter Tail Power, supra, n. 6. But even if one were to agree with this broad speculation, the solution is simple and straightforward. If Congress determines that the use of state-court proceedings to foster anticompetitive schemes is of sufficient gravity, it may simply conclude that the need for greater antitrust enforcement outweighs the need to prevent friction in our federal system and amend § 16 to expressly authorize an injunction of state-court proceedings.
No desire for more vigorous antitrust enforcement should cause us to lose sight of our role as judges in interpreting the explicit command of a congressional statute; for notwithstanding the rhetoric of the dissenting opinion, the conclusion that § 16 is an "expressly authorized" exception to § 2283 is no more than an ipse dixit. The "explicit wording of § 2283," Atlantic Coast Line R. Co., supra, 398 U.S., at 297, 90 S.Ct., at 1748, is lost on the dissent; the dissent's approach is the clearest form of judicial improvisation which the Court counseled against in Amalgamated Clothing Workers of America v. Richman Bros. Co., supra, 348 U.S., at 514, 75 S.Ct., at 454.
10
A possible exception is Porter v. Dicken, 328 U.S. 252, 66 S.Ct. 1094, 90 L.Ed. 1203 (1946), regarding § 205(a) of the Emergency Price Control Act of 1942. This Act, enacted in response to wartime exigencies, expired in 1947.
*
I cannot agree with Mr. Justice STEVENS, post, at 661-662, that the examples given in the quoted portion of California Motor Transport Co. v. Trucking Unlimited necessarily involve the use of the adjudicatory process in the same way that the state courts were being used in this case. For example, there is no reason to believe that the Court's reference to the use of a patent obtained by fraud to exclude a competitor contemplated only one lawsuit. The case cited in connection with that reference, Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965), held only that the enforcement of a patent procured by fraud on the Patent Office could state a claim under § 2 of the Sherman Act, where the monopolistic acts alleged included use of the fraudulent patent through a course of action involving both threats of suit and prosecution of an infringement suit.
Mr. Justice STEVENS' quotation from California Motor Transport stops just short of the language that I consider critical to the instant case. The Court's opinion continues:
"Misrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process. Opponents before agencies or courts often think poorly of the other's tactics, motions, or defenses and may readily call them baseless. One claim, which a court or agency may think baseless, may go unnoticed; but a pattern of baseless, repetitive claims may emerge which leads the factfinder to conclude that the administrative and judicial processes have been abused. That may be a difficult line to discern and draw." 404 U.S., at 513, 92 S.Ct., at 613.
Since I believe that federal courts should be hesitant indeed to enjoin ongoing state-court proceedings, I am of the opinion that a pattern of baseless, repetitive claims or some equivalent showing of grave abuse of the state courts must exist before an injunction would be proper. No such finding was made by the District Court in this case.
1
Specific findings of likelihood of ultimate success on the merits, likelihood of irreparable harm, a balance of the equities in favor of respondent-movants, and of protection of the public interest by issuance of the injunction are recited and substantiated in the District Court opinion. 403 F.Supp. 527, 532-538 (1975). The Court of Appeals affirmed, specifically rejecting petitioner's attack on the finding of a likelihood of ultimate success on the merits. 545 F.2d 1050, 1058-1059 (CA7 1976).
2
The late Richard W. McLaren served as Assistant Attorney General in charge of the Antitrust Division of the Department of Justice from 1969 until his appointment to the bench in 1972. In private practice he had acted as Chairman of the Antitrust Section of the American Bar Association.
3
It is well settled, and the District Court so held, that when the precise conduct proscribed by the antitrust laws is sought to be furthered by litigation, the antitrust laws forbid a court from giving judgment if to do so "would be to make the courts a party to the carrying out of one of the very restraints forbidden by the Sherman Act." Kelly v. Kosuga, 358 U.S. 516, 520, 79 S.Ct. 429, 431, 3 L.Ed.2d 475. See 403 F.Supp., at 535, citing Continental Wall Paper Co. v. Louis Voight & Sons, 212 U.S. 227, 261, 29 S.Ct. 280, 291, 53 L.Ed. 486. See Response of Carolina v. Leasco Response, Inc., 498 F.2d 314, 317-320 (CA5 1974), cert. denied, 419 U.S. 1050, 95 S.Ct. 626, 42 L.Ed.2d 645; Milsen Company v. Southland Corp., 454 F.2d 363 (CA7 1971); Helfenbein v. International Industries, Inc., 438 F.2d 1068, 1071 (CA8 1971); Farbenfabriken Bayer, A. G. v. Sterling Drug, Inc., 307 F.2d 207 (CA3 1962); Tampa Electric Co. v. Nashville Coal Co., 276 F.2d 766 (CA6 1960); United States v. Bayer Co., 135 F.Supp. 65 (SDNY 1955).
4
"A court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. § 2283.
5
"The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade." Northern Pacific R. Co. v. United States, 356 U.S. 1, 4, 78 S.Ct. 514, 517, 2 L.Ed.2d 545.
"The purpose of the Sherman Anti-Trust Act is to prevent undue restraints of interstate commerce, to maintain its appropriate freedom in the public interest, to afford protection from the subversive or coercive influences of monopolistic endeavor. 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." Appalachian Coals, Inc. v. United States, 288 U.S. 344, 359 360, 53 S.Ct. 471, 474, 77 L.Ed. 825.
6
Act of Mar. 2, 1793, § 5, 1 Stat. 335: "(N)or shall a writ of injunction be granted to stay proceedings in any court of a state . . .." For convenience, the plurality has referred to this clause as the "Anti-Injunction Act"; that, however, is not the proper name of the statute.
7
In his first speech in support of his bill, Senator Sherman stated:
"The power of the State courts has been repeatedly exercised to set aside such combinations as I shall hereafter show, but these courts are limited in their jurisdiction to the State, and, in our complex system of government, are admitted to be unable to deal with the great evil that now threatens us.
". . . The purpose of this bill is to enable the courts of the United States to apply the same remedies against combinations which injuriously affect the interests of the United States that have been applied in the several States to protect local interests.
". . . The committee therefore deemed it proper by express legislation to confer on the circuit courts of the United States original jurisdiction of all suits of a civil nature at common law or in equity arising under this section, with authority to issue all remedial process or writs proper and necessary to enforce its provisions . . .." 21 Cong.Rec. 2456 (1890).
Later the same day he said:
"(Congress) may 'regulate commerce;' can it not protect commerce, nullify contracts that restrain commerce, turn it from its natural courses, increase the price of articles, and therefore diminish the amount of commerce?
"(The power of the combinations') for mischief will be greatly crippled by this bill. Their present plan of organization was adopted only to evade the jurisdiction of State courts.
"Suppose one of these combinations should unite all, or nearly all, the domestic producers of an article of prime necessity with a view to prevent competition and to keep the price up to the foreign cost and duty added, would not this be in restraint of trade and commerce and affect injuriously the operation of our revenue laws? Can Congress prescribe no remedy except to repeal its taxes? Surely it may authorize the executive authorities to appeal to the courts of the United States for such a remedy, as courts habitually apply in the States for the forfeiture of charters thus abused and the punishment of officers who practice such wrongs to the public. It may also give to our citizens the right to sue for such damages as they have suffered." Id., at 2462.
Senator Sherman, 3 days later, discussing the rise of the "combinations" during the preceding twenty years, stated:
". . . The State courts have attempted to wrestle with this difficulty. I produced decisions of the supreme courts of several of the States.
"Take the State of New York, where the sugar trust was composed of seventeen corporations. What remedy had the people of New York in the suit that they had against that combination? None whatever, except as against one corporation out of the seventeen. No proceeding could be instituted in the State of New York by which all those corporations could be brought in one suit under the common jurisdiction of the United States. No remedy could be extended by the courts, although they were eager and earnest in search of a remedy.
". . . When a man is injured by an unlawful combination why should he not have the power to sue in the courts of the United States? It would not
answer to send him to a State court. It would not answer at all to to send him to a court of limited jurisdiction. Then, besides, it is a court of the United States that alone has jurisdiction over all parts of the United States. The United States can send its writs into every part of a State and make parties in different States submit to its process. The States can not do that." Id., at 2568-2569. Similarly, in the House debate Congressman Culberson, floor sponsor of the bill, had this to say during his introductory remarks:
"If Congress will legislate within its sphere and to the limit to which it may go, and if the legislatures of the several States will do their duty and supplement that legislation, the trusts and combinations which are devouring the substance of the people of the country may be effectually suppressed. The States are powerless unless Congress will take charge of the trade between the States and make unlawful traffic that operates in restraint of trade and which promotes and encourages monopoly." Id., at 4091.
See Letwin, Congress and the Sherman Antitrust Law: 1887-1890, 23 U.Chi.L.Rev. 221 (1956).
8
"(F)ounded upon broad conceptions of public policy, the prohibitions of the statute were enacted to prevent not the mere injury to an individual which would arise from the doing of the prohibited acts, but the harm to the general public which would be occasioned by the evils which it was contemplated would be prevented, and hence not only the prohibitions of the statute but the remedies which it provided were co-extensive with such conceptions. . . . (T)he statute in express terms vested the Circuit Court(s) of the United States with 'jurisdiction to prevent and restrain violations of this act,' and besides expressly conferred the amplest discretion in such courts to join such parties as might be deemed necessary and to exert such remedies as would fully accomplish the purposes intended." Wilder Manufacturing Co. v. Corn Products Co., 236 U.S. 165, 174, 35 S.Ct. 398, 401, 59 L.Ed. 520.
See Northern Securities Co. v. United States, 193 U.S. 197, 343-347, 349-350, 24 S.Ct. 436, 459-462, 48 L.Ed. 679 (opinion of Harlan, J.).
9
Section 4 of the Sherman Act authorized equitable relief in actions brought by United States Attorneys; § 7 authorized any person injured in his business or property by reason of a violation of the antitrust laws to recover treble damages. 26 Stat. 209-210. In both sections, as is true of § 16 of the Clayton Act, the scope of the court's jurisdiction is limited only by the need to establish a violation of the Act.
10
Although the kind of relief which is appropriate in private litigation may sometimes be different from that which the Government may obtain, cf. United States v. Borden Co., 347 U.S. 514, 518-520, 74 S.Ct. 703, 706-707, 98 L.Ed. 903, there is no difference in the scope of the jurisdictional grant to the federal court in the two kinds of cases:
"(T)he purpose of giving private parties treble damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws. E. g., United States v. Borden Co., 347 U.S. 514, 518, 74 S.Ct. 703, 706, 98 L.Ed. 903 (1954). Section 16 should be construed and applied with this purpose in mind . . .. Its availability should be 'conditioned by the necessities of the public interest which Congress has sought to protect.' (Hecht Co. v. Bowles, 321 U.S. 321, 330, 64 S.Ct.: 587, 592, 88 L.Ed. 754.)" Zenith Corp. v. Hazeltine, 395 U.S. 100, 130-131, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129.
11
Section 16 provides:
"(A)ny person . . . shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws . . . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules, governing such proceedings . . .." 38 Stat. 737, 15 U.S.C. § 26.
The legislative history of § 16 is thin. In addition to the nearly identical House and Senate Reports, ante, at 634 n. 5, the following comments from the House debate provide some idea of the congressional intent. Congressman McGillicuddy, a member of the Commerce Committee, described the perceived need:
"Under the present law any person injured in his business or property by acts in violation of the Sherman antitrust law may recover his damage. . . . There is no provision under the present law, however, to prevent threatened loss or damage even though it be irreparable. The practical effect of this is that a man would have to sit by and see his business ruined before he could take advantage of his remedy. In what condition is such a man to take up a long and costly lawsuit to defend his rights?
"The proposed bill solves this problem for the person, firm, or corporation threatened with loss or damage to property by providing injunctive relief against the threatened act that will cause such loss or damage. Under this most excellent provision a man does not have to wait until he is ruined in his business before he has his remedy." 51 Cong.Rec. 9261 (1914). During consideration of the Conference Report Congressman Floyd described the scope of the § 16 remedy:
"(S)o that if a man is injured by a discriminatory contract, by a tying contract, by the unlawful acquisition of stock of competing corporations, or by reason of someone acting unlawfully as a director in two banks or other corporations, he can go into any court and enjoin or restrain the party from committing such unlawful acts." Id., at 16319.
12
"(T)he generic designation of the first and second sections of the (Sherman Act), when taken together, embraced every conceivable act which could possibly come within the spirit or purpose of the prohibitions of the law, without regard to the garb in which such acts were clothed. That is to say, it was held (in Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619,) that in view of the general language of the statute and the public policy which it manifested, there was no possibility of frustrating that policy by resorting to any disguise or subterfuge of form, since resort to reason rendered it impossible to escape by any indirection the prohibitions of the statute." United States v. American Tobacco Co., 221 U.S. 106, 181, 31 S.Ct. 632, 649, 55 L.Ed. 663.
13
Walker Process Equiment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247.
14
MacGregor v. Westinghouse Co., 329 U.S. 402, 67 S.Ct. 421, 91 L.Ed. 380.
15
Pratt v. Paris Gas Light & Coke Company, 168 U.S. 255, 260, 18 S.Ct. 62, 64, 42 L.Ed. 458.
16
Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359; 417 U.S. 901, 94 S.Ct. 2594, 41 L.Ed.2d 207 (summary affirmance after remand); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642.
17
Timken Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199; Farbenfabriken Bayer, A. G. v. Sterling Drug, Inc., 307 F.2d 207 (CA3 1962); Gray Line, Inc. v. Gray Line Sightseeing Companies Assoc., Inc., 246 F.Supp. 495 (ND Cal.1965).
18
International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; United Shoe Machinery Corp. v. United States, 258 U.S. 451, 42 S.Ct. 363, 66 L.Ed. 708; Phillips v. Crown Central Petroleum Corp., 376 F.Supp. 1250 (Md.1973).
19
Janel Sales Corp. v. Lanvin Parfums, Inc., 396 F.2d 398 (CA2 1968), cert. denied, 393 U.S. 938, 89 S.Ct. 303, 21 L.Ed.2d 275; Katz Drug Co. v. W. A. Sheaffer Pen Co., 6 F.Supp. 212 (WD Mo.1933).
20
In litigation between a franchisee and a franchisor the former may challenge the validity of various contract provisions under federal law, while the latter may rely heavily on state contract law as a basis for controlling the franchisee's conduct. State proceedings to obtain possession of disputed premises or equipment are powerful weapons in such litigation, even when the federal court has the power to maintain the status quo. See Chmieleski v. City Products Corp., 71 F.R.D. 118, 141-142, 158 (WD Mo.1976).
21
The potential consequences of the plurality's view may perhaps best be illustrated by reference to a common-law decision that could not possibly survive scrutiny under the Sherman Act. In Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co., (1894) A.C. 535, the House of Lords held that a 25-year, worldwide covenant not to compete in the arms business was an enforceable bargain. One of the parties to such a contract was therefore entitled to enjoin a breach of the agreement by another party. If such common-law relief should be granted by a state court in a comparable situation, and if the plurality's interpretation of the statute were accepted, a federal court would be powerless to interfere with state proceedings to enforce such a judgment.
22
The text of the statute is quoted in n. 4, supra.
23
Rather surprisingly the plurality seems to regard Amalgamated Clothing Workers v. Richman Bros. Co., 348 U.S. 511, 75 S.Ct. 452, 99 L.Ed. 600, as supporting its position. That case involved a construction of the portion of the Taft-Hartley Act that conferred jurisdiction on the National Labor Relations Board to obtain injunctive relief in certain situations. The Court rejected the argument that the statute implicitly authorized similar relief for private parties:
"Congress explicitly gave such jurisdiction to the district courts only on behalf of the Board on a petition by it or 'the officer or regional attorney to whom the matter may be referred.' § 10(j), (l), 61 Stat. 149, 29 U.S.C. § 160(j), (l). To hold that the Taft-Hartley Act also authorizes private litigant to secure interim relief would be to ignore the closely circumscribed jurisdiction given to the District Court and to generalize where Congress has chosen to specify. To find exclusive authority for relief vested in the Board and not in private parties accords with other aspects of the Act." Id., at 517, 75 S.Ct., at 456.
Since the statute did not expressly authorize the requested relief, it was obviously not within the 'expressly authorized' exception to § 2283. The fact that the Court simply read the relevant statutes literally in that case supports my view that we should use the same approach here.
In Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234, on which the plurality also relies, the union did not even argue that injunctive relief was expressly authorized by federal statute. It unsuccessfully contended "that the federal injunction was proper either 'to protect or effectuate' the District Court's denial of an injunction in 1967, or as necessary in aid of the District Court's jurisdiction." Id., at 284, 90 S.Ct., at 1742. That case is wholly inapposite to the issue presented today.
The fact that these two cases provide the plurality with its strongest support emphasizes the dramatic character of its refusal to accept the plain meaning of the words Congress has written.
24
"But the power of the District Courts to issue an injunction to stay proceedings in a State court is questioned, since, by the Judiciary Act of 1793, 1 Stat. 335, it was declared that no writ of injunction shall be granted (by the United States courts) 'to stay proceedings in any court of a State.' But the act of 1851 was a subsequent statute, and by the 4th section of this act after providing for proceedings to be had under it for the benefit of shipowners, and after declaring that it shall be deemed a sufficient compliance with its requirements on their part if they shall transfer their interest in ship and freight for the benefit of the claimants to a trustee to be appointed by the court it is expressly declared, that 'from and after (such) transfer all claims and proceedings against the owners shall cease.' Surely this injunction applies as well to 'claims and proceedings' in State courts as to those in the federal courts . . .." 109 U.S., at 599-600, 3 S.Ct., at 393.
25
The relevant portions of §§ 205(a) and (c) of the Emergency Price Control Act of 1942, 56 Stat. 33, simply provided:
"Sec. 205. (a) Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of section 4 of this Act, he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the Administrator that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond.
"(c) The district courts shall have jurisdiction of criminal proceedings for violations of section 4 of this Act, and concurrently with State and Territorial courts, of all other proceedings under section 205 of this Act."
26
"In the first place, it is evident that, in order to qualify under the 'expressly authorized' exception of the anti-injunction statute, a federal law need not contain an express reference to that statute. As the Court has said, 'no prescribed formula is required; an authorization need not expressly refer to § 2283.' Amalgamated Clothing Workers v. Richman Bros. Co., 348 U.S. 511, 516, 75 S.Ct. 452, 455, 99 L.Ed. 600. Indeed, none of the previously recognized statutory exceptions contains any such reference. Secondly, a federal law need not expressly authorize an injunction of a state court proceeding in order to qualify as an exception. Three of the six previously recognized statutory exceptions contain no such authorization. Thirdly, it is clear that, in order to qualify as an 'expressly authorized' exception to the anti-injunction statute, an Act of Congress must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state court proceeding. This is not to say that in order to come within the exception an Act of Congress must, on its face and in every one of its provisions, be totally incompatible with the prohibition of the anti-injunction statute. The test, rather, is whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding." 407 U.S., at 237-238, 92 S.Ct., at 2159 (footnotes omitted).
27
See n. 11, supra.
28
Thus, the 1851 Act to limit the liability of shipowners, 9 Stat. 635, applied equally to "preventing or arresting the prosecution of separate suits," see Providence & N.Y.S.S.Co. v. Hill Mfg. Co., 109 U.S. 578, 596, 3 S.Ct. 379, 391, 617, 27 L.Ed. 1038. The Interpleader Act, 28 U.S.C. § 2361, in terms, applies equally to the "instituting or prosecuting" of other litigation. In terms of the interest in federalism, since the injunction against litigation typically runs against the parties rather than the court, there is little difference between denying a citizen access to the state forum and denying him the right to prosecute an existing case to its conclusion. In either situation, a federal injunction must rest on a determination that an important federal policy outweighs the interest in allowing a state court to resolve a particular controversy. But when the federal policy does justify that conclusion, the timing of the state-court action should rarely be controlling.
29
See n. 7, supra.
30
It is true that when the Sherman Act was passed, Congress did not expressly address "the possibility that state-court proceedings would be used to violate the Sherman or Clayton Acts." Ante, at 634. As the statute has been construed, however, it is now well settled that state courts can be used as the very instruments by which litigants, and the public, may be deprived of rights protected by the antitrust laws. When the state courts are so used and the antitrust laws thereby violated, the state litigation is as plainly a matter of federal legislative concern as if it had been expressly identified in the debates preceding the enactment of the 1890 statute.
31
As already noted, supra, at 654-655, n. 23, there was no such express grant of jurisdiction to private litigants in either Amalgamated Clothing Workers v. Richman Bros. Co., 348 U.S. 511, 75 S.Ct. 452, 99 L.Ed. 600, or Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234.
32
Indeed, Mr. Justice Black's opinion for the Court in Porter v. Dicken, 328 U.S. 252, 66 S.Ct. 1094, 90 L.Ed. 1203, seems to proceed on the assumption that the anti-injunction statute is inapplicable when the federal statute may be enforced in either a state or a federal court.
33
Cases in which § 2283 has been held to bar injunctive relief against state proceedings have seldom involved attempts to enforce federal statutes. Indeed, some courts have held that any federal statute expressly authorizing equitable relief is within the exception from § 2283.
34
It is worthy of note that only 5 of the cited statutes predate the addition of the words "except as expressly authorized by Act of Congress" to the anti-injunction statute in 1948 (fully 16 were enacted in the last 10 years).
35
The Reviser's Note to § 2283, which is taken from the House Report, H.R.Rep. No. 308, 80th Cong., 1st Sess., A181-A182 (1947), states that, with the exception of the addition of the words "to protect or effectuate its judgments," which were intended to overrule Toucey v. New York Life Ins. Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100, "the revised section restores the basic law as generally understood and interpreted prior to the Toucey decision."
36
"In some situations there could be, of course, a violation of a covenant not to compete without the breach of a fiduciary duty, as would be the case if Stoner had not been an officer and director of plaintiff. In the present case, however, the acts of defendants in misappropriating the Lektro-Vend (machine) and their use of it to compete against plaintiff are intertwined, the latter being, so to speak, the means by which the former was brought to bear against plaintiff." Vendo Co. v. Stoner, 58 Ill.2d 289, 306-307, 321 N.E.2d 1, 11 (1974).
37
Indeed, a state court's conclusion that the breach of a covenant not to compete constitutes the violation of a fiduciary obligation as a matter of state law is not inconsistent with a federal-court determination that the litigation enforcing that covenant was "conducted in bad faith" as that concept is used in cases like Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 1211, 43 L.Ed.2d 482. While the District Court did not specifically address the question involved in Huffman and Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, it had the following to say in addressing the extent of the Sherman Act violation:
"There is persuasive evidence that Vendo's activities in its litigation against the Stoner interests in Illinois state court were not a genuine attempt to use the adjudicative process legitimately. Its theft of trade secret claim was clearly non-meritorious, and litigation of this claim might well be interpreted considering the record as a whole as an attempt to further harass the Stoner interests and limit the amount of aid Stoner could lend Lektro-Vend. The attempt to enforce the covenants not to compete . . . appears to have been to lengthen the period for which the noncompetition covenants would run. The purpose of this portion of the state litigation seems purely
anti-competitive." 403 F.Supp., at 534-535. The Court of Appeals implicitly affirmed, supra, at 646. Thus while every state proceeding which clashes with the antitrust laws would not necessarily be motivated by a desire to harass or be conducted in bad faith, the findings indicate that such was the case here.
38
See Freeman v. Bee Machine Co., 309 U.S. 448, 63 S.Ct. 1146, 87 L.Ed. 1509; General Investment Co. v. Lake Shore & Mich. So. R. Co., 260 U.S. 261, 43 S.Ct. 106, 67 L.Ed. 244.
39
"Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. And the freedom guaranteed each and every business, no matter how small, is the freedom to compete to assert with vigor, imagination, devotion, and ingenuity whatever economic muscle it can muster." United States v. Topco Associates, 405 U.S. 596, 610, 92 S.Ct. 1126, 1135, 31 L.Ed.2d 515. See also Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 235 236, 68 S.Ct. 996, 1005-1006, 92 L.Ed. 1328.
| 78
|
433 U.S. 667
97 S.Ct. 2905
53 L.Ed.2d 1039
SCHOOL DISTRICT OF OMAHA et al.v.UNITED STATES et al.
No. 76-705.
June 29, 1977.
PER CURIAM.
1
This school desegregation case involves the School District of Omaha, Neb. The District Court in a comprehensive opinion, 389 F.Supp. 293, extensively reviewed the evidence presented by the parties, and recognized that there was considerable racial imbalance in school attendance patterns. Applying a legal standard which placed the burden of proving intentional segregative actions on the respondents, and which regarded the natural and foreseeable consequences of petitioners' conduct as 'neither determinative nor immaterial' but as 'one additional factor to be weighed,' the District Court concluded that the respondent had not carried the burden of proving a deliberate policy of racial segregation. 389 F.Supp. 293. On appeal, the Court of Appeals rejected the legal standard applied by the District Court, 521 F.2d 530, stating that a 'presumption of segregative intent' arises from actions or omissions whose natural and foreseeable result is to 'bring about or maintain segregation.' Id., at 535. Reviewing the facts found by the District Court concerning faculty assignment, student transfers, optional attendance zones, school construction, and the deterioration of one high school in the district, the Court of Appeals generally accepted these factual findings. In each instance, however, it concluded that there was sufficient evidence under the legal standard it adopted to shift the burden of proof to the petitioners. Finding that in no instance had the petitioners caried their rebuttal burden, the Court of Appeals remanded for the formulation of a systemwide remedy. We denied certiorari. 423 U.S. 946, 96 S.Ct. 361, 46 L.Ed.2d 280.
2
Following the explicit instruction of the Court of Appeals, the District Court, 418 F.Supp. 22, promulgated an extensive plan involving, among other elements, the systemwide transportation of pupils. On petitioners' appeal, the Court of Appeals for the Eighth Circuit affirmed. 541 F.2d 708.
3
In Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed. 597 (1976), we said:
4
'(O)ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.'
5
We restated and amplified the implications of this holding in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).
6
Neither the Court of Appeals nor the District Court, in addressing itself to the remedial plan mandated by the earlier decision of the Court of Appeals, addressed itself to the inquiry required by our opinion in Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851, in which we said:
7
'If such violations are found, the District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy.' Supra, at 420, 97 S.Ct. at 2775.
8
The petition for certiorari is accordingly granted, the judgment of the Court of Appeals is vacated, and the case is remanded for reconsideration in the light of Village of Arlington Heights and Dayton.
9
It is so ordered.
10
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
11
The Court's remand of this case for reconsideration in light of Village of Arlington Heights v. Metropolitan Housing Development Cor., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977), is inappropriate because wholly unnecessary. The Court of Appeals concluded that 'segregation in the Omaha School District was intentionally created and maintained by the defendants.' 521 F.2d 530, 532-533 (1975). The petitioners did not contest in the Court of Appeals the finding of the District Court that the Omaha public schools are segregated. Ibid. The Court of Appeals carefully reviewed the abundant evidence in the record bearing on segregative intent and concluded that the evidence justified a presumption that segregative intent permeated petitioners' policies concerning faculty assignment, student transfers, optional attendance zones, school construction, and the deterioration of the 96% black Tech High School. Id., at 537-546. Relying on Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 210, 93 S.Ct. 2686, 2698, 37 L.Ed.2d 548 (1973), the Court of Appeals further found that the petitioners did not rebut this presumption because they 'failed to carry their burden of establishing that segregative intent was not among the factors which motivated their actions.' 521 F.2d, at 536, 537 (emphasis supplied). We denied certiorari. 423 U.S. 946, 96 S.Ct. 361, 46 L.Ed.2d 280 (1975). When the case came before the Court of Appeals for the second time a year later, the court explicitly reviewed its prior holding in light of our intervening decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and found nothing in that case to cause it to revise its earlier opinion. 541 F.2d 708, 709 (1976).
12
Arlington Hights, supra, did not make new law, but only applied the holding of Washington v. Davis that discrimination must be purposeful to be unconstitutional. Arlington Heights interpreted Washington v. Davis to mean that an action in which an 'invidious discriminatory purpose was a motivating factor' is unconstitutional, and that proof that a decision is 'motivated in part by a racially discriminatory purpose' shifts the burden of proof to the alleged discriminator. 429 U.S., at 270-271, n. 21, 97 S.Ct., at 566. The conclusion of the Court of Appeals that the defendants 'failed to carry their burden of establishing that segregative intent was not among the factors which motivated their actions' was based on language from our decision in Keyes, supra, but it so faithfully applies the Arlington Heights formulation that it reads as if the Court of Appeals had anticipated precisely what Arlington Heights would hold five months later. I cannot imagine that the Court of Appeals will do, or properly can do, anything on remand except reaffirm its judgment with a recitation of its gratification that Arlington Heights had been correctly anticipated.
13
Dayton, supra, reaffirmed the already well-established principle that the scope of the remedy must be commensurate with the scope of the constitutional violation. 433 U.S., at 420, 97 S.Ct., at 2775. In this case, the District Court ordered a comprehensive decree to remedy the effects of past discrimination, and the Court of Appeals affirmed. As is evident from a reading of the first Court of Appeals opinion describing the massive systemwide intentional segregation in the Omaha School District, a comprehensive order is entirely appropriate. A less comprehensive order would simply not remedy fully the unconstitutional conditions that have been found to exit in the school system. I would affirm the judgment of the Court of Appeals.
14
Mr. Justice STEVENS, dissenting.
15
For the reasons stated by Mr. Justice BRENNAN, I cannot join the Court's summary disposition of this case. I would deny certiorari.
16
Opinion on remand, 565 F.2d 127.
| 12
|
433 U.S. 676
97 S.Ct. 2909
53 L.Ed.2d 1048
James Junior FINCHv.UNITED STATES.
No. 76-1206.
June 29, 1977.
PER CURIAM.
1
In an information filed in the United States District Court for the District of Montana, petitioner was charged with knowingly fishing on a portion of the Big Horn River in Montana reserved for use by the Crow Indians, in violation of 18 U.S.C. § 1165. The case was submitted to the District Court on an agreed statement of facts, which showed that petitioner had cast his lure into the river while standing on land owned by the State of Montana within the exterior boundaries of the Crow Reservation. After considering the stipulated facts and reviewing the applicable treaties, the court dismissed the information for failure to state an offense. 395 F.Supp. 205 (1975).
2
On the Government's appeal, the Court of Appeals for the Ninth Circuit reversed. 548 F.2d 822 (1976). The court held that the appeal was permissible under 18 U.S.C. § 3731 and the Double Jeopardy Clause because, as in United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), no further factual proceedings would be required in the District Court in the event that its legal conclusions were found to be erroneous:
3
'Here, as in Wilson, it is easy to separate factual resolutions from determinations of law. No additional facts must be found to determine whether the stipulation supports the conviction of the defendant. The only determination to be made is a legal one.' 548 F.2d, at 827.
4
On the merits, the court viewed the pertinent treaties differently from the District Court and held that petitioner had violated 18 U.S.C. § 1165 'by willfully and knowingly fishing without lawful authority or permission of the tribe.' 548 F.2d, at 835. The court directed entry of a judgment of conviction.
5
We think that the Court of Appeals was without jurisdiction to entertain the appeal. When the District Court dismissed the information, jeopardy had attached, see Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), but no formal finding of guilt or innocence had been entered, see United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975); Lee v. United States, 432 U.S. 23, 28 n. 4, 29 n. 7, 97 S.Ct. 2141, 2145 n. 4 and n. 7, 53 L.Ed.2d 80. In these circumstances, the holding of United States v. Wilson is inapposite. A successful Government appeal 'would not justify a reversal with instructions to reinstate the general finding of guilt: there was no such finding, in form or substance, to reinstate.' United States v. Jenkins, supra, 420 U.S., at 368, 95 S.Ct., at 1012. Absent a plea of guilty or nolo contendere, see Fed.Rule Crim.Proc. 11, a verdict or general finding of guilt by the trial court is a necessary predicate to conviction. See Rule 23(c). Because the dismissal was granted prior to any declaration of guilt or innocence, 'on the ground, correct or not, that the defendant simply cannot be convicted of the offense charged,' Lee, supra, 432 U.S., at 30, 97 S.Ct., at 2146, we hold that the Government's appeal was barred by the Double Jeopardy Clause.
6
We grant the petition for certiorari, vacate the judgment of the Court of Appeals, and remand to that court with directions that the appeal be dismissed.
7
It is so ordered.
8
Mr. Justice STEVENS would grant certiorari and set the case for oral argument.
9
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
10
I dissent from the summary disposition of this case for two reasons. The first is that the factual assumption, made both by the Court of Appeals for the Ninth Circuit and by this Court, that petitioner and respondent had agreed to sumit the issue of guilt to the District Court on the 'agreed statement of facts' is by no means clear from Judge Battin's principal opinion in this case, 395 F.Supp. 205. My second reason for disagreeing with summary disposition is that this Court has never passed on any claim of double jeopardy where the issues were submitted on an agreed statement of facts, rather than to a jury for its verdict or to the court for a finding of guilt or innocence after hearing witnesses. While I am not prepared to say that the Court's decision on the legal issue involved here is wrong, I am not sufficiently conviced that it is right so as to justify summary disposition without either argument or briefing on the merits.
11
The Court states that '(t)he case was submitted to the District Court on an agreed statement of facts,' and '(a)fter considering the stipulated facts and reviewing the applicable treaties the court dismissed the information for failure to state an offense.' The Court of Appeals for the Ninth Circuit put the matter much the same way. Implicit in this statement is that the submission involved a waiver of petitioner's right to jury trial and both his and the Government's consent that the district Court decide the issue of guilt or innocence. The District Court's opinion in the case, however, is by no means clear on these points. That court put the matter this way:
12
'On June 14, 1974, the defendant filed a motion to dismiss said information. The parties submitted extensive and wellconsidered memoranda of law. On September 4, 1974 an order was filed wherein I denied the motion to dismiss and noted that the information was sufficient on its face. An Agreed Statement of Facts and additional memoranda of law have been filed. Additionally, counsel for the Crow Tribe of Indians and the State of Montana, Department of Fish and Game, have appeared herein as amici curiae.
13
'After a thorough review of the file, I am compelled to reconsider my order dated September 4, 1974, wherein I denied defendant's motion to dismiss. I conclude that the information is not sufficient on its face for several reasons.' Id., at 207.
14
While this statement is by no means inconsistent with an agreement by the parties to submit the issue of guilt or innoncence to the District Court, neither is it inconsistent with an agreement by the parties to submit on an agreed statement of facts a motion for reconsideration of the motion to dismiss the information, which the District Court had previously denied. This factual uncertainty, unless somehow clarified, would lead me to deny certiorari in this case in order that this Court not render an advisory opinion on what may be an important double jeopardy question.
15
The Court of Appeals, proceeding on the hypothesis that the case had been submitted to the District Court for a determination of guilt or innocence, as well as the sufficiency of the information, decided that jeopardy had attached. It therefore proceeded to inquire whether a reversal of the District Court's dismissal of the information would require further factual determinations, and therefore constitute double jeopardy under United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), or would instead be governed by United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).
16
I agree with the Court that the Court of Appeals' alignment of this case with Wilson rather than with Jenkins was conclusory and gave too little attention to the ways in which this case differs from Wilson. But I do not think the opposite result is so obvious as to warrant summary disposition. In deciding the question of law which this case poses, I do not think we can ignore three double jeopardy decisions which have intervened since the Jenkins-Wilson-Serfass (Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975)) trilogy of two years ago. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), qualified the 'manifest necessity' requirement of United States v. Perez, 9 Wheat. 579 (1824), where a mistrial was granted at the request of the defendant. Its stress on the absence of prosecutorial overraching or misconduct, while in no way inconsistent with that trilogy, nonetheless emphasized more of a balancing and fairness test than the sort of 'bright line' distinctions set forth in Wilson and Jenkins. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), and Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977), likewise read more in terms of balancing and of 'double jeopardy values' than in terms of the strict Wilson-Jenkins distinction.
17
If there has been some shift in emphasis in the Court's cases this Term, it seems to me that the submission of the issue of guilt or innocence on an agreed statement of facts not only factually distingishes this case from Jenkins, but is a factor to be weighed in any balancing test against a finding of double jeopardy. We have held that the Double Jeopardy Clause bars repeated prosecutions not only to reduce the possibility that an innocent man will finally be convicted, but to avoid subjecting defendants 'to embarrassment, expense and ordeal and compelling (them) to live in a continuing state of anxiety and insecurity . . ..' Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 299 (1957). See United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). Since if the Court's factual hypothesis is right, the facts of this case are not in issue, not only is some of the embarrassment and ordeal absent, but the expense that would normally be involved in a full-scale retrial with its calling of witnesses for both sides is likewise avoided.
18
The factual uncertainties in this case are not entirely unrelated to the double jeopardy questions involved. Because we have never decided a case involving double jeopardy claims where the issue of guilt or innoncence was submitted to the court on an agreed statement of facts without the calling of any witnesses, we have never had occasion to pass on when jeopardy attaches in such a situation. Assuming that the factual uncertainties in the procedural history of the case can be clarified, and that the issue of guilt or innocence was submitted to the trial judge. I do not believe this case is controlled by Jenkins. The double jeopardy issues which it raises are not as straightforward as suggested in the Court's summary disposition. If the Court feels this case should be decided on the merits, I would therefore grant certiorari and have it briefed and argued.
| 01
|
433 U.S. 584
97 S.Ct. 2861
53 L.Ed.2d 982
Ehrlich Anthony COKER, Petitioner,v.State of GEORGIA.
No. 75-5444.
Argued March 28, 1977.
Decided June 29, 1977.
Syllabus
While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from a Georgia prison and, in the course of committing an armed robbery and other offenses, raped an adult woman. He was convicted of rape, armed robbery, and the other offenses and sentenced to death on the rape charge, when the jury found two of the aggravating circumstances present for imposing such a sentence, viz., that the rape was committed (1) by a person with prior capital-felony convictions and (2) in the course of committing another capital felony, armed robbery. The Georgia Supreme Court affirmed both the conviction and sentence. Held: The judgment upholding the death sentence is reversed and the case is remanded. Pp. 591-600; 600; 600-601; 601.
234 Ga. 555, 216 S.E.2d 782, reversed and remanded.
1
Mr. Justice WHITE, joined by Mr. Justice STEWART, Mr. Justice BLACKMUN, and Mr. Justice STEVENS, concluded that the sentence of death for the crime of rape is grossly disproportionate and excessive punishment and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment. Pp. 591-600.
2
(a) The Eighth Amendment bars not only those punishments that are 'barbaric' but also those that are 'excessive' in relation to the crime committed, and a punishment is 'excessive' and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. Pp. 591-592.
3
(b) That death is a disproportionate penalty for rape is strongly indicated by the objective evidence of present public judgment, as represented by the attitude of state legislatures and sentencing juries, concerning the acceptability of such a penalty, it appearing that Georgia is currently the only State authorizing the death sentence for rape of an adult woman, that it is authorized for rape in only two other States but only when the victim is a child, and that in the vast majority (9 out of 10) of rape convictions in Georgia since 1973, juries have not imposed the death sentence. Pp. 593-597.
4
(c) Although rape deserves serious punishment, the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such and as opposed to the murderer, does not unjustifiably take human life. Pp. 597-598.
5
(d) The conclusion that the death sentence imposed on petitioner is disproportionate punishment for rape is not affected by the fact that the jury found the aggravating circumstances of prior capital-felony convictions and occurrence of the rape while committing armed robbery, a felony for which the death sentence is also authorized, since the prior convictions do not change the fact that the rape did not involve the taking of life, and since the jury did not deem the robbery itself deserving of the death penalty, even though accompanied by the aggravating circumstances of prior capital-felony convictions. Pp. 598-599.
6
(e) That under Georgia law a deliberate killer cannot be sentenced to death, absent aggravating circumstances, argues strongly against the notion that, with or without such circumstances, a rapist who does not take the life of his victim should be punished more severely than the deliberate killer. P. 600.
7
Mr. Justice BRENNAN concluded that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. P. 600.
8
Mr. Justice MARSHALL concluded that the death penalty is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Pp. 600-601.
9
Mr. Justice POWELL concluded that death is disproportionate punishment for the crime of raping an adult woman where, as here, the crime was not committed with excessive brutality and the victim did not sustain serious or lasting injury. P. 601.
10
David E. Kendall, New York City, for petitioner.
11
B. Dean Grindle, Jr., Atlanta, Ga., for respondent.
12
Mr. Justice WHITE announced the judgment of the Court and filed an opinion in which Mr. Justice STEWART, Mr. Justice BLACKMUN, and Mr. Justice STEVENS, joined.
13
Georgia Code Ann. § 26-2001 (1972) provides that '(a) person convicted of rape shall be punished by death or by imprisonment for life, or by imprisonment for not less than one nor more than 20 years.'1 Punishment is determiend by a jury in a separate sentencing proceeding in which at least one of the statutory aggravating circumstances must be found before the death penalty may be imposed.2 Petitioner Coker was convicted of rape and sentenced to death. Both the conviction and the sentence were affirmed by the Georgia Supreme Court. Coker was granted a writ of certiorari, 429 U.S. 815, 97 S.Ct. 56, 50 L.Ed.2d 75, limited to the single claim, rejected by the Georgia court, that the punishment of death for rape violates the Eighth Amendment, which proscribes 'cruel and unusual punishments' and which must be observed by the States as well as the Federal Government. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
14
* While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from the Ware Correctional Institution near Waycross, Ga., on September 2, 1974. At approximately 11 o'clock that night, petitioner entered the house of Allen and Elnita Carver through an unlocked kitchen door. Threatening the couple with a 'board,' he tied up Mr. Carver in the bathroom, obtained a knife from the kitchen, and took Mr. Carver's money and the keys to the family car. Brandishing the knife and saying 'you know what's going to happen to you if you try anything, don't you,' Coker then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.
15
Petitioner was charged with escape, armed robbery, motor vehicle theft, kidnaping, and rape. Counsel was appointed to represent him. Having been found competent to stand trial, he was tried. The jury returned a verdict of guilty, rejecting his general plea of insanity. A sentencing hearing was then conducted in accordance with the procedures dealt with at length in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), where this Court sustained the death penalty for murder when imposed pursuant to the statutory procedures.3 The jury was instructed that it could consider as aggravating circumstances whether the rape had been committed by a person with a prior record of conviction for a capital felony and whether the rape had been committed in the course of committing another capital felony, namely, the armed robbery of Allen Carver. The court also instructed, pursuant to statute, that even if aggravating circumstances were present, the death penalty need not be imposed if the jury found they were out-weighed by mitigating circumstances, that is, circumstances not constituting justification or excuse for the offense in question, 'but which, in fairness and mercy, may be considered as extenuating or reducing the degree' of moral culpability or punishment. App. 300. The jury's verdict on the rape count was death by electrocution. Both aggravating circumstances on which the court instructed were found to be present by the jury.
II
16
Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and the Court's decisions last Term in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); 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); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), make unnecessary the recanvassing of certain critical aspects of the controversy about the constitutionality of capital punishment. It is now settled that the death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amendment; it is not inherently barbaric or an unacceptable mode of punishment for crime; neither is it always disproportionate to the crime for which it is imposed. It is also established that imposing capital punishment, at least for murder, in accordance with the procedures provided under the Georgia statutes saves the sentence from the infirmities which led the Court to invalidate the prior Georgia capital punishment statute in Furman v. Georgia, supra.
17
In sustaining the imposition of the death penalty in Gregg, however, the Court firmly embraced the holdings and dicta from prior cases, Furman v. Georgia, supra; Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); and Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), to the effect that the Eighth Amendment bars not only those punishments that are 'barbaric' but also those that are 'excessive' in relation to the crime committed. Under Gregg, a punishment is 'excessive' and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the sevrity of the crime. A punishment might fail the test on either ground. Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent. To this end, attention must be given to the public attitudes concerning a particular sentence history and precedent, legislative attitudes, and the response of juries reflected in their sentenceing decisions are to be consulted. In Gregg, after giving due regard to such sources, the Court's judgment was that the death penalty for deliberate murder was neither the purposeless imposition of severe punishment nor a punishment grossly disproportionate to the crime. But the Court reserved the question of the constitutionality of the death penalty when imposed for other crimes. 428 U.S., at 187 n. 35, 96 S.Ct., at 2932.
III
18
That question, with respect to rape of an adult woman, is now before us. We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.4
19
* As advised by recent cases, we seek guidance in history and from the objective evidence of the country's present judgment concerning the acceptability of death as a penalty for rape of an adult woman. At no time in the last 50 years have a majority of the States authorized death as a punishment for rape. In 1925, 18 States, the District of Columbia, and the Federal Government authorized capital punishment for the rape of an adult female.5 By 1971 just prior to the decision in Furman v. Georgia, that number had declined, but not substantially, to 16 States plus the Federal Government.6 Furman then invalidated most of the capital punishment statutes in this country, including the rape statutes, because, among other reasons, of the manner in which the death penalty was imposed and utilized under those laws.
20
With their death penalty statutes for the most part invalidated, the States were faced with the choice of enacting modified capital punishment laws in an attempt to satisfy the requirements of Furman or of being satisfied with life imprisonment as the ultimate punishment for any offense. Thirtyfive States immediately reinstituted the death penalty for at least limited kinds of crime. Gregg v. Georgia, 428 U.S., at 179 n. 23, 96 S.Ct., at 2928. This public judgment as to the acceptability of capital punishment, evidenced by the immediate, post-Furman legislative reaction in a large majority of the States, heavily influenced the Court to sustain the death penalty for murder in Gregg v. Georgia, supra, at 179-182, 96 S.Ct., at 2928-2929.
21
But if the 'most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman,' Gregg v. Georgia, supra, at 179-180, 96 S.Ct., at 2928, it should also be a telling datum that the public judgment with respect to rape, as reflected in the statutes providing the punishment for that crime, has been dramatically different. In reviving death penalty laws to satisfy Furman's mandate, none of the States that had not previously authorized death for rape chose to include rape among capital felonies. Of the 16 States in which rape had been a capital offense, only three provided the death penalty for rape of an adult woman in their revised statutes Georgia, North Carolina, and Louisiana. In the latter two States, the death penalty was mandatory for those found guilty, and those laws were invalidated by Woodson and Roberts. When Louisiana and North Carolina, responding to those decisions, again revised their capital punishment laws, they reenacted the death penalty for murder but not for rape; none of the seven other legislatures that to our knowledge have amended or replaced their death penalty statutes since July 2, 1976, including four States (in addition to Louisiana and North Carolina) that had authorized the death sentence for rape prior to 1972 and had reacted to Furman with mandatory statutes, included rape among the crimes for which death was an authorized punishment.7
22
Georgia argues that 11 of the 16 States that authorized death for rape in 1972 attempted to comply with Furman by enacting arguably mandatory death penalty legislation and that it is very likely that, aside from Louisiana and North Carolina, these States simply chose to eliminate rape as a capital offense rather than to require death for each and every instance of rape.8 The argument is not without force; but 4 of the 16 States did not take the mandatory course and also did not continue rape of an adult woman as a capital offense. Further, as we have indicated, the legislatures of 6 of the 11 arguably mandatory States have revised their death penalty laws since Woodson and Roberts without enacting a new death penalty for rape. And this is to say nothing of 19 other States that enacted nonmandatory, post-Furman statutes and chose not to sentence rapists to death.
23
It should be noted that Florida, Mississippi, and Tennessee also authorized the death penalty in some rape cases, but only where the victim was a child and the rapist an adult.9 The Tennessee statute has since been invalidated because the death sentence was mandatory. Collins v. State, 550 S.W.2d 643 (Tenn.1977). The upshot is that Georgia is the sole jurisdiction in the United States at the present time that authorizes a sentence of death when the rape victim is an adult woman, and only two other jurisdictions provide capital punishment when the victim is a child.
24
The current judgment with respect to the death penalty for rape is not wholly unanimous among state legislatures, but it obviously weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman.10
B
25
It was also observed in Gregg that '(t)he jury . . . is a significant and reliable objective index of contemporary values because it is so directly involved.' 428 U.S., at 181, 96 S.Ct., at 2929, and that it is thus important to look to the sentencing decisions that juries have made in the course of assessing whether capital punishment is an appropriate penalty for the crime being tried. Of course, the jury's judgment is meaningful only where the jury has an appropriate measure of choice as to whether the death penalty is to be imposed. As far as execution for rape is concerned, this is now true only in Georgia and in Florida; and in the latter State, capital punishment is authorized only for the rape of children.
26
According to the factual submissions in this Court, out of all rape convictions in Georgia since since 1973 and that total number has not been tendered 63 cases had been reviewed by the Georgia Supreme Court as of the time of oral argument; and of these, 6 involved a death sentence, 1 of which was set aside, leaving 5 convicted rapists now under sentence of death in the State of Georgia. Georgia juries have thus sentenced rapists to death six times since 1973. This obviously is not a negligible number; and the State argues that as a practical matter juries simply reserve the extreme sanction for extreme cases of rape and that recent experience surely does not prove that jurors consider the death penalty to be a disproportionate punishment for every conceivable instance of rape, no matter how aggravated. Nevertheless, it is true that in the vast majority of cases, at least 9 out of 10, juries have not imposed the death sentence.
IV
27
These recent events evidencing the attitude of state legislatures and sentencing juries do not wholly determine this controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. Nevertheless, the legislative rejection of capital punishment for rape strongly confirms our own judgment, which is that death is indeed a disproportionate penalty for the crime of raping an adult woman.
28
We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the 'ultimate violation of self.'11 It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage.12 Because it undermines the community's sense of security, there is public injury as well.
29
Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person.13 The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which 'is unique in its severity and irrevocability,' Gregg v. Georgia, 428 U.S., at 187, 96 S.Ct., at 2931, is an excessive penalty for the rapist who, as such, does not take human life.
30
This does not end the matter; for under Georgia law, death may not be imposed for any capital offense, including rape, unless the jury or judge finds one of the statutory aggravating circumstances and then elects to impose that sentence. Ga.Code § 26-3102 (1976 Supp); Gregg v. Georgia, supra, 428 U.S., at 165-166, 96 S.Ct., at 2921-2922. For the rapist to be executed in Georgia, it must therefore be found not only that he committed rape but also that one or more of the following aggravating circumstances were present: (1) that the rape was committed by a person with a prior record of conviction for a capital felony; (2) that the rape was committed while the offender was engaged in the commission of another capital felony, or aggravated battery; or (3) the rape 'was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim.'14 Here, the first two of these aggravating circumstances were alleged and found by the jury.
31
Neither of these circumstances, nor both of them together, change our conclusion that the death sentence imposed on Coker is a disproportionate punishment for rape. Coker had prior convictions for capital felonies rape, murder, and kidnaping but these prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life.
32
It is also true that the present rape occurred while Coker was committing armed robbery, a felony for which the Georgia statutes authorize the death penalty.15 But Coker was tried for the robbery offense as well as for rape and received a separate life sentence for this crime; the jury did not deem the robbery itself deserving of the death penalty, even though accompanied by the aggravating circumstance, which was stipulated, that Coker had been convicted of a prior capital crime.16
33
We note finally that in Georgia a person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. He also commits that crime when in the commission of a felony he causes the death of another human being, irrespective of malice. But even where the killing is deliberate, it is not punishable by death absent proof of aggravating circumstances. It is difficult to accept the notion, and we do not, that the rapist, with or without aggravating circumstances, should be punished more heavily than the deliberate killer as long as the rapist does not himself take the life of his victim. The judgment of the Georgia Supreme Court upholding the death sentence is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
34
So ordered.
35
Mr. Justice BRENNAN, concurring in the judgment.
36
Adhering 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) (dissenting opinion), I concur in the judgment of the Court setting aside the death sentence imposed under the Georgia rape statute.
37
Mr. Justice MARSHALL, concurring in the judgment.
38
In Gregg v. Georgia, 428 U.S. 153, 231, 96 S.Ct. 2909, 2973, 49 L.Ed.2d 859 (1976) (dissenting opinion), I stated: '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.' I then explained in some detail my reasons for reaffirming my position. I continue to adhere to those views in concurring in the judgment of the Court in this case.
39
Mr. Justice POWELL, concurring in the judgment in part and dissenting in part.
40
I concur in the judgment of the Court on the facts of this case, and also in the plurality's reasoning supporting the view that ordinarily death is disproportionate punishment for the crime of raping an adult woman. Although rape invariably is a reprehensible crime, there is no indication that petitioner's offense was committed with excessive brutality or that the victim sustained serious or lasting injury. The plurality, however, does not limit its holding to the case before us or to similar cases. Rather, in an opinion that ranges well beyond what is necessary, it holds that capital punishment always regardless of the circumstances is a disproportionate penalty for the crime of rape.
41
The Georgia statute, sustained in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), specifies aggravating circumstances that may be considered by the jury when appropriate. With respect to the crime of rape, only three such circumstances are specified: (i) the offense was committed by a person with a prior record of conviction for a capital felony; (ii) the offense was committed while the offender was engaged in another capital felony or in aggravated battery; and (iii) the offense was 'outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.' Ante, at 588-589, n. 3. Only the third circumstance describes in general the offense of aggravated rape, often identified as a separate and more heinous offense than rape. See, e. g., ALI, Model Penal Code § 207.4, Comment, p. 246 (Tent.Draft No. 4, 1955); ALI, Model Penal Code § 213.1 (Prop. Off. Draft, 1962); Nev.Rev.Stat. § 200.363 (1975). That third circumstance was not submitted to the jury in this case, as the evidence would not have supported such a finding. It is therefore quite unnecessary for the plurality to write in terms so sweeping as to foreclose each of the 50 state legislatures from creating a narrowly defined substantive crime of aggravated rape punishable by death.1
42
In accord with our decisions last Term, the plurality opinion states:
43
'(T)he death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amendments it is not inherently barbaric or an unacceptable mode of punishment for crime; neither is it always disproportionate to the crime for which it is imposed.' Ante, at 591.
44
Thus capital punishment may be imposed on those sentenced in accordance with the procedures identified in Gregg and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), at least when the offender is convicted of murder, the crime involved in all five of last Term's capital cases.
45
Today, in a case that does not require such an expansive pronouncement, the plurality draws a bright line between murder and all rapes regardless of the degree of brutality of the rape or the effect upon the victim. I dissent because I am not persuaded that such a bright line is appropriate. As noted in Snider v. Peyton, 356 F.2d 626, 627 (CA4 1966), '(t)here is extreme variation in the degree of culpability of rapists.' The deliberate viciousness of the rapist may be greater than that of the murderer. Rape is never an act committed accidentally. Rarely can it be said to be unpremeditated. There also is wide variation in the effect on the victim. The plurality opinion says that '(l)ife is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.' Ante, at 598. But there is indeed 'extreme variation' in the crime of rape. Some victims are so grievously injured physically or psychologically that life is beyond repair.
46
Thus, it may be that the death penalty is not disproportionate punishment for the crime of aggravated rape. Final resolution of the question must await careful inquiry into objective indicators of society's 'evolving standards of decency,' particularly legislative enactments and the responses of juries in capital cases.2 See Gregg v. Georgia, supra, 428 U.S., at 173-182, 96 S.Ct., at 2925-2929 (joint opinion of Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina, supra, 428 U.S., at 294-295, 96 S.Ct., at 2987 (plurality opinion); Furman v. Georgia, 408 U.S. 238, 436-443, 92 S.Ct. 2726, 2827-2830, 33 L.Ed.2d 346 (1972) (Powell, J., dissenting). The plurality properly examines these indicia, which do support the conclusion that society finds the death penalty unacceptable for the crime of rape in the absence of excessive brutality or severe injury. But it has not been shown that society finds the penalty disproportionate for all rapes. In a proper case a more discriminating inquiry than the plurality undertakes well might discover that both juries and legislatures have reserved the ultimate penalty for the case of an outrageous rape resulting in serious, lasting harm to the victim. I would not prejudge the issue. To this extent, I respectfully dissent.
47
Mr. Chief Justice BURGER, with whom Mr. Justice REHNQUIST joins, dissenting.
48
In a case such as this, confusion often arises as to the Court's proper role in reaching a decision. Our task is not to give effect to our individual views on capital punishment; rather, we must determine what the Constitution permits a State to do under its reserved powers. In striking down the death penalty imposed upon the petitioner in this case, the Court has overstepped the bounds of proper constitutional adjudication by substituting its policy judgment for that of the state legislature. I accept that the Eighth Amendment's concept of disproportionality bars the death penalty for minor crimes. But rape is not a minor crime; hence the Cruel and Unusual Punishments Clause does not give the Members of this Court license to engraft their conceptions of proper public policy onto the considered legislative judgments of the States. Since I cannot agree that Georgia lacked the constitutional power to impose the penalty of death for rape, I dissent from the Court's judgment.
49
(1)
50
On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead. He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment.1 Each judgment specified that the sentences it imposed were to run consecutively rather than concurrently. Approximately 1 1/2 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm. It is this crime for which the sentence now under review was imposed.
51
The Court today holds that the State of Georgia may not impose the death penalty on Coker. In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape. The Court's holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist. In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court's holding assures that petitioner as well as others in his position will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself. To what extent we have left States 'elbowroom' to protect innocent persons from depraved human beings like Coker remains in doubt.
52
(2)
53
My first disagreement with the Court's holding is its unnecessary breadth. The narrow issue here presented is whether the State of Georgia may constitutionally execute this petitioner for the particular rape which he has committed, in light of all the facts and circumstances shown by this record. The plurality opinion goes to great lengths to consider societal mores and attitudes toward the generic crime of rape and the punishment for it; however, the opinion gives little attention to the special circumstances which bear directly on whether imposition of the death penalty is an appropriate societal response to Coker's criminal acts: (a) On account of his prior offenses, Coker is already serving such lengthy prison sentences that imposition of additional periods of imprisonment would have no incremental punitive effect; (b) by his life pattern Coker has shown that he presents a particular danger to the safety, welfare, and chastity of women, and on his record the likelihood is therefore great that he will repeat his crime at the first opportunity; (c) petitioner escaped from prison, only a year and a half after he commenced serving his latest sentences; he has nothing to lose by further escape attempts; and (d) should he again succeed in escaping from prison, it is reasonably predictable that he will repeat his pattern of attacks on women and with impunity since the threat of added prison sentences will be no deterrent.
54
Unlike the plurality, I would narrow the inquiry in this case to the question actually presented: Does the Eighth Amendment's ban against cruel and unusual punishment prohibit the State of Georgia from executing a person who has, within the space of three years, raped three separate women, killing one and attempting to kill another, who is serving prison terms exceeding his probable lifetime and who has not hesitated to escape confinement at the first available opportunity? Whatever one's view may be as to the State's constitutional power to impose the death penalty upon a rapist who stands before a court convicted for the first time, this case reveals a chronic rapist whose continuing danger to the community is abundantly clear.
55
Mr. Justice POWELL would hold the death sentence inappropriate in this case because 'there is no indication that petitioner's offense was committed with excessive brutality or that the victim sustained serious or lasting injury.' Ante, at 601.2 Apart from the reality that rape is inherently one of the most egregiously brutal acts one human being can inflict upon another, there is nothing in the Eighth Amendment that so narrowly limits the factors which may be considered by a state legislature in determining whether a particular punishment is grossly excessive. Surely recidivism, especially the repeated commission of heinous crimes, is a factor which may properly be weighed as an aggravating circumstance, permitting the imposition of a punishment more severe than for one isolated offense. For example, as a matter of national policy, Congress has expressed its will that a person who has committed two felonies will suffer enhanced punishment for a third one, 18 U.S.C. § 3575(e)(1); Congress has also declared that a second conviction for assault on a mail carrier may be punished more seriously than a first such conviction, 18 U.S.C. § 2114. Many States provide an increased penalty for habitual criminality. See, e. g., Wis.Stat.Ann. § 939.62 (1958); see also Annot., 58 A.L.R. 20 (1929); 82 A.L.R. 345 (1933); 79 A.L.R.2d 826 (1961).3 As a factual matter, the plurality opinion is correct in stating that Coker's 'prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life,' ante, at 599; however, it cannot be disputed that the existence of these prior convictions makes Coker a substantially more serious menace to society than a first-time offender:4
56
'There is a widely held view that those who present the strongest case for severe measures of incapacitation are not murderers as a group (their offenses often are situational) but rather those who have repeatedly engaged in violent, combative behavior. A well-demonstrated propensity for life-endangering behavior is thought to provide a more solid basis for infliction of the most severe measures of incapacitation than does the fortuity of a single homicidal incident.' Packer, Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1080 (1964). (Emphasis added.)
57
In my view, the Eighth Amendment does not prevent the State from taking an individual's 'well-demonstrated propensity for life-endangering behavior' into account in devising punitive measures which will prevent inflicting further harm upon innocent victims. See Gregg v. Georgia, 428 U.S. 153, 183 n. 28, 96 S.Ct. 2909, 2930, 49 L.Ed.2d 859 (1976). Only one year ago Mr. Justice White succinctly noted: '(D)eath finally forecloses the possibility that a prisoner will commit further crimes, whereas life imprisonment does not.' Roberts v. Louisiana, 428 U.S. 325, 354, 96 S.Ct. 3001, 3016, 49 L.Ed.2d 974 (1976) (dissenting opinion); see also Furman v. Georgia, 408 U.S., at 311, 92 S.Ct., at 2763 (White, J., concurring).
58
In sum, once the Court has held that 'the punishment of death does not invariably violate the Constitution,' Gregg v. Georgia, supra, 428 U.S., at 169, 96 S.Ct., at 2923, it seriously impinges upon the State's legislative judgment to hold that it may not impose such sentence upon an individual who has shown total and repeated disregard for the welfare, safety, personal integrity, and human worth of others, and who seemingly cannot be deterred from continuing such conduct.5 I therefore would hold that the death sentence here imposed is within the power reserved to the State and leave for another day the question of whether such sanction would be proper under other circumstances. The dangers which inhere whenever the Court casts its constitutional decisions in terms sweeping beyond the facts of the case presented, are magnified in the context of the Eighth Amendment. In Furman v. Georgia, supra, at 431, 92 S.Ct., at 2824, Mr. Justice POWELL, in dissent stated:
59
'(W)here, as here, the language of the applicable (constitutional) provision provides great leeway and where the underlying social policies are felt to be of vital importance, the temptation to read personal preference into the Constitution is understandably great. It is too easy to propound our subjective standards of wise policy under the rubric of more or less universally held standards of decency.' (Emphasis added.)
60
Since the Court now invalidates the death penalty as a sanction for all rapes of adults at all times under all circumstances,6 I reluctantly turn to what I see as the broader issues raised by this holding.
61
(3)
62
The plurality, ante, at 597-598, acknowledges the gross nature of the crime of rape. A rapist not only violates a victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. The longrange effect upon the victim's life and health is likely to be irreparable; it is impossible to measure the harm which results. Volumes have been written by victims, physicians, and psychiatric specialists on the lasting injury suffered by rape victims. Rape is not a mere physical attack it is destructive of the human personality. The remainder of the victim's life may be gravely affected, and this in turn may have a serious detrimental effect upon her husband and any children she may have. I therefore wholly agree with Mr. Justice WHITE's conclusion as far as it goes that '(s)hort of homicide, (rape) is the 'ultimate violation of self." Ante, at 597. Victims may recover from the physical damage of knife or bullet wounds, or a beating with fists or a club, but recovery from such a gross assault on the human personality is not healed by medicine or surgery. To speak blandly, as the plurality does, of rape victims who are 'unharmed,' or to classify the human outrage of rape, as does Mr. Justice POWELL, in terms of 'excessively brutal,' ante, at 601, versus 'moderately brutal,' takes too little account of the profound suffering the crime imposes upon the victims and their loved ones.
63
Despite its strong condemnation of rape, the Court reaches the inexplicable conclusion that 'the death penalty . . . is an excessive penalty' for the perpetrator of this heinous offense.7 This, the Court holds, is true even though in Georgia the death penalty may be imposed only where the rape is coupled with one or more aggravating circumstances. The process by which this conclusion is reached is startling as it is disquieting. It represents a clear departure from precedent by making this Court 'under the aegis of the Cruel and Unusual Punishments Clause, the ultimate arbiter of the standards of criminal responsibility in diverse areas of the criminal law, throughout the country.' Powell v. Texas, 392 U.S. 514, 533, 88 S.Ct. 2145, 2154, 20 L.Ed.2d 1254 (1968) (opinion of Marshall, J.).8 This seriously strains and distorts our federal system, removing much of the flexibility from which it has drawn strength for two centuries.
64
The analysis of the plurality opinion is divided into two parts: (a) an 'objective' determination that most American jurisdictions do not presently make rape a capital offense, and (b) a subjective judgment that death is an excessive punishment for rape because the crime does not, in and of itself, cause the death of the victim. I take issue with each of these points.
65
(a)
66
The plurality opinion bases its analysis, in part, on the fact that 'Georgia is the sole jurisdiction in the United States at the present time that authorizes a sentence of death when the rape victim is an adult woman.' Ante, at 595-596. Surely, however, this statistic cannot be deemed determinative, or even particularly relevant. As the opinion concedes, ante, at 594, two other States Louisiana and North Carolina have enacted death penalty statutes for adult rape since this Court's 1972 decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. If the Court is to rely on some 'public opinion' process, does this not suggest the beginning of a 'trend'? More to the point, however, it is myopic to base sweeping constitutional principles upon the narrow experience of the past five years. Considerable uncertainty was introduced into this area of the law by this Court's Furman decision. A large number of States found their death penalty statutes invalidated; legislatures were left in serious doubt by the expressions vacillating between discretionary and mandatory death penalties, as to whether this Court would sustain any statute imposing death as a criminal sanction.9 Failure of more States to enact statutes imposing death for rape of an adult woman may thus reflect hasty legislative compromise occasioned by time pressures following Furman, a desire to wait on the experience of those States which did enact such statutes, or simply an accurate forecast of today's holding.
67
In any case, when considered in light of the experience since the turn of this century, where more than one-third of American jurisdictions have consistently provided the death penalty for rape, the plurality's focus on the experience of the immediate past must be viewed as truly disingenuous. Having in mind the swift changes in positions of some Members of this Court in the short span of five years, can it rationally be considered a relevant indicator of what our society deems 'cruel and unusual' to look solely to what legislatures have refrained from doing under conditions of great uncertainty arising from our less than lucid holdings on the Eighth Amendment? Far more representative of societal mores of the 20th century is the accepted practice in a substantial number of jurisdictions preceding the Furman decision. '(The) problem . . . is the suddenness of the Court's perception of progress in the human attitude since decisions of only a short while ago.' Furman v. Georgia, supra, at 410, 92 S.Ct., at 2814 (Blackmun, J., dissenting). Cf. Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963).
68
However, even were one to give the most charitable acceptance to the plurality's statistical analysis, it still does not, to my mind, support its conclusion. The most that can be claimed is that for the past year Georgia has been the only State whose adult rape death penalty statute has not otherwise been invalidated; two other state legislatures had enacted rape death penalty statutes in the last five years, but these were invalidated for reasons unrelated to rape under the Court's decisions last Term. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Even if these figures could be read as indicating that no other States view the death penalty as an appropriate punishment for the rape of an adult woman, it would not necessarily follow that Georgia's imposition of such sanction violates the Eighth Amendment.
69
The Court has repeatedly pointed to the reserve strength of our federal system which allows state legislatures, within broad limits, to experiment with laws, both criminal and civil, in the effort to achieve socially desirable results. See, e. g., Whalen v. Roe, 429 U.S. 589, 597-598, and n. 22, 97 S.Ct. 869, 875-876, 51 L.Ed.2d 64 (1977); Johnson v. Louisiana, 406 U.S. 356, 376, 92 S.Ct. 1620, 1641, 32 L.Ed.2d 152 (1972) (opinion of Powell, J.); California v. Green, 399 U.S. 149, 184-185, 90 S.Ct. 1930, 1948-1949, 26 L.Ed.2d 489 (1970) (Harlan, J., concurring); Fay v. New York, 332 U.S. 261, 296, 67 S.Ct. 1613, 1631, 91 L.Ed. 2043 (1947). Various provisions of the Constitution, including the Eighth Amendment and the Due Process Clause, of course place substantive limitations on the type of experimentation a State may undertake. However, as the plurality admits, the crime of rape is second perhaps only to murder in its gravity. It follows then that Georgia did not approach such substantive constraints by enacting the statute here in question. See also infra at 619-622.
70
Statutory provisions in criminal justice applied in one part of the country can be carefully watched by other state legislatures, so that the experience of one State becomes available to all. Although human lives are in the balance, it must be remembered that failure to allow flexibility may also jeopardize human lives those of the victims of undeterred criminal conduct. See, infra, at 620. Our concern for the accused ought not foreclose legislative judgments showing a modicum of consideration for the potential victims.
71
Three state legislatures have, in the past five years, determined that the taking of human life and the devastating consequences of rape will be minimized if rapists may, in a limited class of cases, be executed for their offenses.10 That these States are presently a minority does not, in my view, make their judgment less worthy of deference. Our concern for human life must not be confined to the guilty; a state legislature is not to be thought insensitive to human values because it acts firmly to protect the lives and related values of the innocent. In this area the choices for legislatures are at best painful and difficult and deserve a high degree of deference. Only last Term Mr. Justice White observed:
72
'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.' Roberts v. Louisiana, supra, 428 U.S., at 355, 96 S.Ct., at 3017 (dissenting opinion). (Emphasis added.)
73
The question of whether the death penalty is an appropriate punishment for rape is surely an open one. It is arguable that many prospective rapists would be deterred by the possibility that they could suffer death for their offense; it is also arguable that the death penalty would have only minimal deterrent effect.11 It may well be that rape victims would become more willing to report the crime and aid in the apprehension of the criminals if they knew that community disapproval of rapists was sufficiently strong to inflict the extreme penalty; or perhaps they would be reluctant to cooperate in the prosecution of rapists if they knew that a conviction might result in the imposition of the death penalty. Quite possibly, the occasional, well-publicized execution of egregious rapists may cause citizens to feel greater security in their daily lives;12 or, on the contrary, it may be that members of a civilized community will suffer the pangs of a heavy conscience because such punishment will be perceived as excessive.13 We cannot know which among this range of possibilities is correct, but today's holding forecloses the very exploration we have said federalism was intended to foster. It is difficult to believe that Georgia would long remain alone in punishing rape by death if the next decade demonstrated a drastic reduction in its incidence of rape, an increased cooperation by rape victims in the apprehension and prosecution of rapists, and a greater confidence in the rule of law on the part of the populace.
74
In order for Georgia's legislative program to develop it must be given time to take effect so that data may be evaluated for comparison with the experience of States which have not enacted death penalty statutes. Today, the Court repudiates the State's solemn judgment on how best to deal with the crime of rape before anyone can know whether the death penalty is an effective deterrent for one of the most horrible of all crimes. And this is done a few short years after Mr. Justice Powell's excellent statement:
75
'In a period in our country's history when the frequency of (rape) is increasing alarmingly, it is indeed a grave event for the Court to take from the States whatever deterrent and retributive weight the death penalty retains.' Furman v. Georgia, 408 U.S., at 459, 92 S.Ct., at 2839 (dissenting opinion) (footnote omitted).
76
To deprive States of this authority as the Court does, on the basis that '(t)he current judgment with respect to the death penalty for rape . . . weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman,' ante, at 596, is impermissibly rash. The current judgment of some Members of this Court has undergone significant change in the short time since Furman.14 Social change on great issues generally reveals itself in small increments, and the 'current judgment' of many States could well be altered on the basis of Georgia's experience, were we to allow its statute to stand.15
77
(b)
78
The subjective judgment that the death penalty is simply disproportionate to the crime of rape is even more disturbing than the 'objective' analysis discussed supra. The plurality's conclusion on this point is based upon the bare fact that murder necessarily results in the physical death of the victim, while rape does not. Ante, at 598-599, 600. However, no Member of the Court explains why this distinction has relevance, much less constitutional significance. It is, after all, not irrational nor constitutionally impermissible for a legislature to make the penalty more severe than the criminal act it punishes16 in the hope it would deter wrongdoing:
79
'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.' Gregg v. Georgia, 428 U.S., at 175, 96 S.Ct., at 2926.
80
Accord, Furman v. Georgia, supra, 408 U.S., at 451, 92 S.Ct., at 2834 (Powell, J., dissenting).
81
It begs the question to state, as does the plurality opinion:
82
'Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.' Ante, at 598.
83
Until now, the issue under the Eighth Amendment has not been the state of any particular victim after the crime, but rather whether the punishment imposed is grossly disproportionate to the evil committed by the perpetrator. See Gregg v. Georgia, supra, at 173, 96 S.Ct., at 2925; Furman v. Georgia, supra, at 458, 92 S.Ct., at 2838 (Powell, J., dissenting). As a matter of constitutional principle, that test cannot have the primitive simplicity of 'life for life, eye for eye, tooth for tooth.' Rather States must be permitted to engage in a more sophisticated weighing of values in dealing with criminal activity which consistently poses serious danger of death or grave bodily harm. If innocent life and limb are to be preserved I see no constitutional barrier in punishing by death all who engage in such activity, regardless of whether the risk comes to fruition in any particular instance. See Packer, 77 Harv.L.Rev., at 1077-1079.
84
Only one year ago the Court held it constitutionally permissible to impose the death penalty for the crime of murder, provided that certain procedural safeguards are followed. Compare Gregg v. Georgia, supra; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), with Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Today, the plurality readily admits that '(s)hort of homicide, (rape) is the 'ultimate violation of self." Ante, at 597. Moreover, as stated by Mr. Justice Powell:
85
'The threat of serious injury is implicit in the definition of rape; the victim is either forced into submission by physical violence or by the threat of violence.' Furman v. Georgia, supra, 408 U.S., at 460, 92 S.Ct., at 2839 (dissenting opinion).
86
Rape thus is not a crime 'light years' removed from murder in the degree of its heinousness; it certainly poses a serious potential danger to the life and safety of innocent victims apart from the devastating psychic consequences. It would seem to follow therefore that, affording the States proper leeway under the broad standard of the Eighth Amendment,17 murder is properly punishable by death, rape should be also, if that is the considered judgment of the legislators.
87
The Court's conclusion to the contrary is very disturbing indeed. The clear implication of today's holding appears to be that the death penalty may be properly imposed only as to crimes resulting in death of the victim. This casts serious doubt upon the constitutional validity of statutes imposing the death penalty for a variety of conduct which, though dangerous, may not necessarily result in any immediate death, e. g., treason, airplane hijacking, and kidnaping. In that respect, today's holding does even more harm than is initially apparent. We cannot avoid taking judicial notice that crimes such as airplane hijacking, kidnaping, and mass terrorist activity constitute a serious and increasing danger to the safety of the public. It would be unfortunate indeed if the effect of today's holding were to inhibit States and the Federal Government from experimenting with various remedies including possibly imposition of the penalty of death to prevent and deter such crimes.
88
Some sound observations, made only a few years ago, deserve repetition:
89
'Our task here, as must so frequently be emphasized and re-emphasized, is to pass upon the constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges. 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. In fact, as today's decision reveals, they are almost irresistible.' Furman v. Georgia, 408 U.S., at 411, 92 S.Ct., at 2815 (Blackmun, J., dissenting).
90
Whatever our individual views as to the wisdom of capital punishment, I cannot agree that it is constitutionally impermissible for a state legislature to make the 'solemn judgment' to impose such penalty for the crime of rape. Accordingly, I would leave to the States the task of legislating in this area of the law.
1
The section defines rape as having 'carnal knowledge of a female, forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.'
2
See n. 3, infra.
3
Ga.Code § 26-3102 (Supp. 1976):
'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.'
Ga.Code § 27-2302 (Supp.1976):
Recommendation to mercy.
'In all capital cases, other than those of homicide, when the verdict is guilty, with a recommendation to mercy, it shall be legal and shall be a recommendation to the judge of imprisonment for life. Such recommendation shall be binding upon the judge.'
Ga.Code § 27-2534.1 (Supp.1976):
'Mitigating and aggravating circumstances; death penalty.
'(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.'
Ga.Code § 27-2537 (Supp.1976):
'Review of death sentences.
'(a) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Georgia. The clerk of the trial court, within ten days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court of Georgia together with a
notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Supreme Court of Georgia.
'(b) The Supreme Court of Georgia shall consider the punishment as well as any errors enumerated by way of appeal.
'(c) With regard to the sentence, the court shall determine:
'(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
'(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
'(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
'(d) Both the defendant and the State shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court.
'(e) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
'(1) Affirm the sentence of death; or
'(2) Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court of Georgia in its decision, and the extracts prepared as hereinafter provided for, shall be provided to the resentencing judge for his consideration.
'(f) There shall be an Assistant to the Supreme Court, who shall be an attorney appointed by the Chief Justice of Georgia and who shall serve at the pleasure of the court. The court shall 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. The Assistant shall provide the court with whatever extracted information it
desires with respect thereto, including but not limited to a synopsis or brief of the facts in the record concerning the crime and the defendant.
'(g) 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.
'(h) The office of the Assistant shall be attached to the office of the Clerk of the Supreme Court of Georgia for administrative purposes.
'(i) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.'
4
Because the death sentence is a disproportionate punishment for rape, it is cruel and unusual punishment within the meaning of the Eighth Amendment even though it may measurably serve the legitimate ends of punishment and therefore is not invalid for its failure to do so. We observe that in the light of the legislative decisions in almost all of the States and in most of the countries around the world, it would be difficult to support a claim that the death penalty for rape is an indispensable part of the States' criminal justice system.
5
See Bye, Recent History and Present Status of Capital Punishment in the United States, 17 J.Crim.L. & C., 234, 241-242 (1926).
6
Ala.Code, Tit. 14, § 395 (1958); Ark.Stat.Ann. § 41-3403 (1964); Fla.Stat.Ann. § 794.01 (1965); Ga.Code § 26-2001 (1970); Ky.Rev.Stat.Ann. §§ 435.080-435.090 (1962); La.Rev.Stat.Ann. § 14:42 (1950); Md.Ann.Code, Art. 27, § 461 (1957); Miss.Code Ann. § 2358 (1957); Mo. Rev.Stat. § 559260 (1969); Nev.Rev.Stat. § 200.360 (1963) (rape with substantial bodily harm); N.C.Gen.Stat. § 14-21 (1969); Okl.Stat.Ann., Tit. 21, § 1115 (1958); S.C.Code Ann. §§ 16-72, 16-80 (1962); Tenn. Code Ann. § 39-3702 (1955); Tex.Penal Code § 1189 (1961); Va.Code Ann. § 18.1-44 (1960); 18 U.S.C. § 2031.
7
1976 Okla.Sess.Laws, c. 1, p. 627; 1976 La. Acts, Nos. 657, 694; 1976 Ky.Acts. c. 15 (Ex. Sess.); 1977 Wyo.Sess.Laws, c. 122. Recent legislative action has taken place in North Carolina, Virginia, Maryland, California, and New Jersey. The legislation has been signed into law in North Carolina and Virginia, N.C.Sess. Laws (May 19, 1977); 1977 Va.Acts, c. 492 (Mar. 29, 1977), and has been vetoed in Maryland and California, Washington Post, May 27, 1977, p. Al, col. 1; N.Y. Times, May 28, 1977, p. 8, col. 6. The Governor of New Jersey apparently has not yet acted on the legislation in that State.
8
The legislation that respondent places in this category is as follows:
Ky.Rev.Stat. § 507.020 (1975); La.Rev.Stat.Ann. § 14:30 (1974); Md.Code Ann., Art. 27, § 413(b) (Supp. 1976); Miss.Code Ann. §§ 97-3-19, 97-3-21, 97-25-55, 99-17-20 (Supp. 1975); Mo.Rev.Stat. §§ 559.005, 559.009 (Supp. 1975); Nev.Rev.Stat. § 200.030 (1975); N.C.Gen.Stat. §§ 14-17, 14-21 (Supp. 1975); Okl.Stat.Ann., Tit. 21, §§ 701.1-701.3 (Supp. 1975); S.C.Code Ann. § 16-52 (Supp. 1975); Tenn.Code Ann. §§ 39-2402, 39-2406, 39-3702 (1975); Va.Code Ann. §§ 18.2-10, 18.2-31 (1975). Brief for Respondent 19 n. 38.
9
Fla.Stat.Ann. § 794.011(2) (1976); Miss.Code Ann. § 97-3-65 (Supp.1976); Tenn.Code Ann. § 39-3702 (1974).
10
In Trop v. Dulles, 356 U.S. 86, 102, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958), the plurality took pains to note the climate of international opinion concerning the acceptability of a particular punishment. It is thus not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue. United Nations, Department of Economic and Social Affairs, Capital Punishment 40, 86 (1968).
11
U.S.Dept. of Justice Law Enforcement Assistance Administration Report, Rape and Its Victims: A Report for Citizens, Health Facilities, and Criminal Justice Agencies 1 (1975), quoting Bard & Ellison, Crisis Intervention and Investigation of Forcible Rape, The Police Chief (May 1974), reproduced as Appendix I B to the Report.
12
See Note, The Victim In a Forcible Rape Case: A Feminist View, 11 Am.Crim.L.Rev. 335, 338 (1973); Comment, Rape and Rape Laws: Sexism in Society and Law, 61 Calif.L.Rev. 919, 922-923 (1973).
13
See n. 1, supra, for the Georgia definition of rape.
14
There are other aggravating circumstances provided in the statute, see n. 3, supra, but they are not applicable to rape.
15
In Gregg v. Georgia, the Georgia Supreme Court refused to sustain a death sentence for armed robbery because, for one reason, death had been so seldom imposed for this crime in other cases that such a sentence was excessive and could not be sustained under the statute. As it did in this case, however, the Georgia Supreme Court apparently continues to recognize armed robbery as a capital offense for the purpose of applying the aggravating-circumstances provisions of the Georgia Code.
16
Where the accompanying capital crime is murder, it is most likely that the defendant would be tried for murder, rather than rape; and it is perhaps academic to deal with the death sentence for rape in such a circumstance. It is likewise unnecessary to consider the rapefelony murder a rape accompanied by the death of the victim which was unlawfully but nonmaliciously caused by the defendant.
Where the third aggravating circumstance mentioned in the text is present that the rape is particularly vile or involves torture or aggravated battery it would seem that the defendant could very likely be convicted, tried, and appropriately punished for this additional conduct.
1
It is not this Court's function to formulate the relevant criteria that might distinguish aggravated rape from the more usual case, but perhaps a workable test would embrace the factors identified by Georgia: the cruelty or viciousness of the offender, the circumstances and manner in which the offense was committed, and the consequences suffered by the victim. See also Ralph v. Warden, 438 F.2d 786 (CA4 1970), cert. denied, 408 U.S. 942, 92 S.Ct. 2846, 33 L.Ed.2d 766 (1972); 438 F.2d, at 794 (opinion of Haynsworth, C. J.). The legislative task of defining, with appropriate specificity, the elements of the offense of aggravated rape would not be easy, see Furman v. Georgia, 408 U.S. 238, 460, 92 S.Ct. 2726, 2839, 33 L.Ed.2d 346 (1972) (Powell, J., dissenting), but certainly this Court should not assume that the task is impossible.
The dissent of THE CHIEF JUSTICE, relying on selected excerpts from my opinion in Furman, seeks to buttress the view that for sentencing purposes meaningful distinctions cannot be drawn between rapes regardless of the circumstances and effect upon the victim. Post, at 607-608, n. 2. The dissent emphasizes the difficulties of proof. But the jury system is designed and operates successfully to resolve precisely this type of factual issue. The law of negligence, for example, is replete with issues requiring the jury to determine degrees of culpability and the extent or permanency of physical and psychological injury.
I am complimented by the frequency with which THE CHIEF JUSTICE, in his dissent, cites and quotes from my opinion in Furman. That opinion, however, did not prevail, and as with most of the writing in Furman it now must be read in light of Gregg and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), which have established the controlling general principles. But contrary to implications in THE CHIEF JUSTICE's dissent, my opinion in Furman did emphasize that the proportionality test as to rape should be applied on a case-by-case basis, noting that in some cases the death sentence would be 'grossly excessive.' 408 U.S., at 461, 92 S.Ct., at 2839. I remain in disagreement with the simplistic all-or-nothing views of the plurality opinion and the dissenting opinion of THE CHIEF JUSTICE.
2
These objective indicators are highly relevant, but the ultimate decision as to the appropriateness of the death penalty under the Eighth Amendment as the plurality notes, ante, at 597, must be decided on the basis of our own judgment in light of the precedents of this Court.
1
On March 12, 1973, the Superior Court of Richmond County, Ga., sentenced Coker to 20 years' imprisonment for the kidnaping of petitioner's second victim, and to life imprisonment for one act of rape upon her. On May 28, 1973, the Superior Court of Taliaferro County, Ga., sentenced Coker to eight years' imprisonment for aggravated assault upon the same victim, and to life imprisonment for the second rape upon her. On April 6, 1973, the Superior Court of Clayton County, Ga., sentenced Coker to 20 years' imprisonment for the rape of petitioner's first victim, and to life imprisonment for her murder. App. 307-312.
2
The position today adopted by Mr. Justice POWELL constitutes a disquieting shift from the view he embraced several Terms ago in Furman v. Georgia, 408 U.S. 238, 460-461, 92 S.Ct. 2726, 2839, 33 L.Ed.2d 346 (1972) (dissenting opinion), where he stated:
'While I reject each of (petitioners') attempts to establish specific categories of cases in which the death penalty may be deemed excessive, I view them as groping toward what is for me the appropriate application of the Eighth Amendment. While in my view the disproportionality test may not be used either to strike down the death penalty for rape altogether or to install the Court as a tribunal for sentencing review, that test may find its application in the peculiar circumstances of specific cases. Its utilization should be limited to the rare case in which the death penalty is rendered for a crime technically falling within the legislatively defined class but factually falling outside the likely legislative intent in creating the category.' (Emphasis added.)
While Mr. Justice POWELL purports to dissent from the broadest sweep of the Court's holding, I cannot see that his view differs materially from that of the plurality. He suggests two situations where it might be proper to execute rapists: (1) where the 'offense (is) committed
with excessive brutality'; and (2) where 'the victim sustained serious or lasting injury.' The second part of this test was rejected by Mr. Justice POWELL himself in Furman, and with good reason: '(T)he emotional impact (upon the rape victim) may be impossible to gauge at any particular point in time. The extent and duration of psychological trauma may not be known or ascertainable prior to the date of trial.' Id., at 460, 92 S.Ct., at 2839. Can any Member of the Court state with confidence that a 16-year-old woman who is raped in the presence of her husband three weeks after giving birth to a baby 'sustained (no) serious or lasting injury'? This bifurcation of rape into categories of harmful and nonharmful eludes my comprehension.
The difficulty with the first part of Mr. Justice POWELL's test is that rape is inherently an aggravated offense; in Mr. Justice POWELL's own words, 'the threat of both (physical and psychological) injury is always present.' Id., at 459, 92 S.Ct., at 2838. Therefore the 'excessive brutality' requirement must refer to something more, I assume, than the force normally associated with physically coercing or over-powering the will of another. Rather, what must be meant is that the rapist has engaged, in torture or has committed an aggravated battery upon the victim. See, ante, at 601-602, and n. 1. However, torture and aggravated battery are offenses separate from rape, and ordinarily are punished separately. The clear negative inference of Mr. Justice POWELL's analysis therefore appears to be that where rape alone is committed, i. e., rape unaccompanied by any other criminal conduct, the death penalty may never be imposed.
3
This Court has consistently upheld the constitutional validity of such punishment-enhancing statutes. See, e. g., Spencer v. Texas, 385 U.S. 554, 559-560, 87 S.Ct. 648, 651, 17 L.Ed.2d 606 (1967):
'No claim is made here that recidivist statutes are . . . unconstitutional, nor could there be under our cases. Such statutes and other enhanced-sentence laws, and procedures designed to implement their underlying policies, have been enacted in all the States, and by the Federal Government as well. . . . Such statutes . . . have been sustained in this Court on several occasions against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities.' (Footnote and citations omitted; emphasis added.)
Accord, Oyler v. Boles, 368 U.S. 448, 451, 82 S.Ct. 501, 503, 7 L.Ed.2d 446 (1962).
4
This special danger is demonstrated by the very record in this case. After tying and gagging the victim's husband, and raping the victim, petitioner sought to make his getaway in their automobile. Leaving the victim's husband tied and gagged in his bathroom, Coker took the victim with him. As he started to leave, he brandished the kitchen knife he was carrying and warned the husband that 'if he would get pulled over or the police was following him in any way that he would kill he would kill my wife. He said he didn't have nothing to lose that he was in prison for the rest of his life, anyway . . ..' Testimony of the victim's husband, App. 121 (emphasis added).
5
Professor Packer addressed this:
'What are we to do with those whom we cannot reform, and, in particular, those who by our failure are thought to remain menaces to life? Current penal theories admit, indeed insist upon, the need for permanent incapacitation in such cases. Once this need is recognized, the death penalty as a means of incapacitation for the violent psychopath can hardly be objected to on grounds that will survive rational scrutiny, if the use of the death penalty in any situation is to be permitted. And its use in rape cases as a class, while inept, is no more so than its use for any other specific offense involving danger to life and limb.' Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1081 (1964). (Emphasis added.)
6
I find a disturbing confusion as to this issue in the plurality opinion. The issue is whether Georgia can, under any circumstances and for any kind of rape 'mild' or 'gross' impose the death penalty. Yet the plurality opinion opens its discussion, apparently directed at demonstrating that this was not an 'aggravated' rape, saying that following the rape and kidnaping, 'Mrs. Carver was unharmed.' Ante, at 587. If the Court is holding that no rape can ever be punished by death, why is it relevant whether Mrs. Carver was 'unharmed'?
7
While only three Justices have joined Mr. Justice WHITE in this portion of his opinion, see separate opinion of Mr. Justice POWELL, ante, p. 601, I take this to be the view of the Court in light of Mr. Justice BRENNAN's and Mr. Justice MARSHALL's statements joining the judgment.
8
Only last Term in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens warned that 'the requirements of the Eighth Amendment must be applied with an awareness of the limited role to be played by the courts,' and noted that 'we may not act as judges as we might as legislators,' Id., at 174-175, 96 S.Ct., at 295. Accord, Roberts v. Louisiana, 428 U.S. 325, 355-356, 96 S.Ct. 3001, 3017, 49 L.Ed.2d 974 (1976). (White, J., dissenting). Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS further noted that '(t)he deference we owe to decisions of the state legislatures under our federal system, (Furman v. Georgia, 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).' 428 U.S., at 176, 96 S.Ct., at 2926 (Emphasis added.)
9
I take no satisfaction in my predictive caveat in Furman:
'Since there is no majority of the Court on the ultimate issue presented in these cases, the future of capital punishment in this country has been left in an uncertain limbo. Rather than providing a final and unambiguous answer on the basic constitutional question, the collective unpact of the majority's ruling is to demand an undetermined measure of change from the various state legislatures and the Congress.' 408 U.S., at 403, 92 S.Ct., at 2811 (dissenting opinion).
10
The statute here in question does not provide the death penalty for any and all rapes. Rather, the jury must find that at least one statutorily defined aggravated circumstance is present. Ga.Code §§ 26-3102, 27-2534.1(b)(1), (2), and (7) (Supp.1976).
11
'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, (408 U.S.,) at 403-405, 92 S.Ct., at 2810-2812 (Burger, C. J., dissenting).' Gregg v. Georgia, 428 U.S., at 186, 96 S.Ct., at 2931 (joint opinion of Stewart, Powell, and Stevens, JJ.).
12
'There are many cases in which the sordid, heinous nature of a particular (rape), demeaning, humiliating, and often physically or psychologically traumatic, will call for public condemnation.' Furman v. Georgia, 408 U.S., at 459, 92 S.Ct., at 2839 (Powell, J., dissenting).
13
Obviously I have no special competence to make these judgments, but by the same token no other Member of the Court is competent to make a contrary judgment. This is why our system has, until now, left these difficult policy choices to the state legislatures, which may be no wiser, but surely are more attuned to the mores of their communities, then are we.
14
Indeed as recently as 1971 a year before Furman a majority of this Court appeared to have no doubt about the constitutionality of the death penalty. See McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971).
15
To paraphrase Mr. Justice Powell, '(w)hat (the Court is) saying, in effect, is that the evolutionary process has come suddenly to an end; that the ultimate wisdom as to the appropriateness of capital punishment (for adult rape) under all circumstances, and for all future generations, has somehow been revealed.' Furman v. Georgia, supra, at 430-431, 92 S.Ct., at 2824 (dissenting opinion).
16
For example, hardly any thief would be deterred from stealing if the only punishment upon being caught were return of the money stolen.
17
Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens in Gregg v. Georgia noted: '(I)n assessing a punishment selected by a democratically elected legislature against the constitutional measure (of the Eighth Amendment), we presume its validity. . . . (A) heavy burden rests on those who would attack the judgment of the representatives of the people.' 428 U.S., at 175, 96 S.Ct., at 2926 (emphasis added). Accord, Furman v. Georgia, supra, 408 U.S., at 451, 92 S.Ct., at 2834 (Powell, J., dissenting).
The reason for this special deference to state legislative enactments was described:
'This is true in part because the constitutional test is interwined 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, (408 U.S.,) at 383, 92 S.Ct., at 2800 (Burger, C. J., dissenting).' 428 U.S., at 175-176, 96 S.Ct., at 2926.
| 01
|
434 U.S. 1
98 S.Ct. 42
54 L.Ed.2d 1
NEW HAMPSHIREv.MAINE
No. 64
Supreme Court of the United States
October 3, 1977
1
On joint motion for entry of final decree.
DECREE
2
The joint motion for entry of a final decree is granted.
3
IT IS Ordered, Adjudged and Decreed as Follows:
4
1. The Report of the Special Master is hereby approved, and the motion for entry of judgment by consent of plaintiff and defendant is granted.
5
2. This judgment determines the lateral marine boundary line between New hampshire and Maine from the inner Portsmouth Harbor to the breakwater at the end of the inner Gosport Harbor in the Isles of Shoals.
6
3. The Order of the King in Council of April 9, 1740, in pertinent part, provided:
7
"And as to the Northern Boundary between the said Provinces, the Court Resolve and Determine, That the Dividing Line shall pass up thro the Mouth of Piscataqua Harbour and up the Middle of the River into the River of Newichwannock (part of which is now called Salmon Falls) and thro the Middle of the same to the furthest Head thereof and from thence North two Degrees Westerly until One Hundred and Twenty Miles be finished from the Mouth of Piscataqua Harbour aforesaid or until it meets with His Majestys other Governments And That the Dividing Line shall part the Isles of Shoals and run thro the Middle of the Harbour between the Islands to the Sea on the Southerly Side; and that the Southwesterly part of the said Islands shall lye in and be accounted part of the Province of New Hampshire And that the North Easterly part thereof shall lye in, and be accounted part of the Province of the Massachusets Bay and be held and enjoyed by the said provinces respectively in the same manner as they now do and have heretofore held and enjoyed the same . . . ."
8
4. The terms "Middle of the River" and "Middle of the Harbour," as used in the above-quoted Order, mean the middle of the main channel of navigation of the Piscataqua River and the middle of the main channel of navigation of Gosport Harbor.
9
5. The middle of the main channel of navigation of the Piscataqua River, commencing in the vicinity of Fort Point, New Hampshire, and Fishing Island, Maine, proceeding southward, is as indicated by the range lights located in the vicinity of Pepperrell Cove, Kittery Point, Maine, and it follows the range line as marked on the Coast and Geodetic Survey Chart 211, 8th Edition, Dec. 1, 1973.
10
6. The main channel of navigation of the Piscataqua River terminates at a point whose position is latitude 43x02'42.5" North and longitude 70x42'06" West. Said point has a computed bearing of 194x44'47.47" true and a computed distance of 1,554.45 metres (1,700 yards) from the Whaleback Lighthouse, No. 19, USCG-158, whose position is latitude 43x03'31.213" North and longitude 70x41'48.515" West (reference National Geodetic Survey).
11
7. The middle of the main channel of navigation of Gosport Harbor passes through a point indicated by the bottom of the BW "IS" Bell Buoy symbol as shown on Coast and Geodetic Survey Chart 211, 8th Edition, Dec. 1, 1973. The position of this point is latitude 42x58'51.6" North and longitude 70x37'17.5" West as scaled from the above-described chart.
12
8. The main channel of navigation of Gosport Harbor terminates at a point whose position is latitude 42x58'55" North and longitude 70x37'39.5" West. Said point has a computed bearing of 394x08'52.81" true and a computed distance of 1,674.39 metres (1,831 yards) from the Isles of Shoals Lighthouse, No. 20, USCG-158, whose position is latitude 42x58'01.710" North and longitude 70x37'25.590" West (reference National Geodetic Survey).
13
9. The lateral marine boundary between New Hampshire and Maine connecting the channel termination points described in paragraphs (6) and (8) above has been determined on the basis of the "special circumstances" exception to Article 12 of the Convention on the Territorial Sea and the Contiguous Zone (15 U.S. Treaties 1608) and of the location of the Isles of Shoals which were divided between the two States in their colonial grants and charters.
14
10. The lateral marine boundary line between New Hampshire and Maine connecting the channel termination points described above is the arc of a great circle (appears as a straight line on a Mercator projection) whose computed length is 9,257.89 metres (10,124.53 yards).
15
11. The lateral marine boundary line between New Hampshire and Maine from the Piscataqua River channel termination point proceeds toward Gosport Harbor channel termination point on a computed bearing of 139x20'27.22" true.
16
12. The lateral marine boundary line between New Hampshire and Maine from the Gosport Harbor channel termination point proceeds toward Piscataqua River channel termination point on a computed bearing of 319x17'25.43" true.
17
13. All positions in the preceding paragraphs are referred to the North American Datum of 1927.
18
14. The boundary line delimited hereinabove is depicted by a heavy black line with the words "Maine" and "New Hampshire" above and below that line on the Coast and Geodetic Survey Chart 211, Eighth Edition, Dec. 1, 1973, filed with the Motion for Entry of Judgment by Consent.
19
15. The State of Maine, its officers, agents, representatives and citizens, are perpetually enjoined from disputing the sovereignty, jurisdiction and dominion of New Hampshire over the area adjudged to her by this decree; and the State of New Hampshire, its officers, agents, representatives and citizens, are perpetually enjoined from disputing the sovereignty, jurisdiction and dominion of Maine over the area adjudged to her by this decree.
20
16. The costs of this action shall be equally divided between the two States, and this case is retained on the docket for further orders, in fulfillment of the provisions of this decree.
| 1011
|
434 U.S. 9
98 S.Ct. 251
54 L.Ed.2d 8
SOUTHERN & NORTHERN OVERLYING CARRIER CHAPTERS OF THE CALIFORNIA DUMP TRUCK OWNERS ASSOCIATIONv.PUBLIC UTILITIES COMMISSION OF CALIFORNIA
No. 76-1526
Supreme Court of the United States
October 11, 1977
Oct. 11, 1977.
PER CURIAM.
1
In this appeal from a judgment of the Supreme Court of California, appellants challenge the constitutionality of the promulgation by appellee of certin rate tariffs applicable to dump truck carriers operating in California. They contend essentially that the tariffs violate their rights to due process and equal protection guaranteed by the Fournteenth Amendment because appellee issued them on the basis of findings unsupported by any evidence in the record. We have been informed by the parties that subsequent to the filing of the juristictional statement with this Court appelle reopened its proceedings at appellants' request and is conducting additional evidentiary hearings concering the contested regulations. These hearings may remove the basis for, or significantly alter the nature of, appellants' constitutional attack. Consequently, we dismiss the appeal without prejudice to appellants' raising of any appropiate federal claims following the completion of the additional proceedings. See Boston & M. R. Co. v. United States, 358 U.S. 68 (1958).
So ordered.
2
Mr. Justice REHNQUIST, dissenting.
3
Since this appeal is properly before us, prior practice indicates that we must either dispose of it on the merits or advance some principled reason for not doing so. The statutory distinction, drawn by Congress, between certiorari and appeal would seem to require no less. While this Court's dismissal of the appeal in Boston & M. R. Co. v. United States, 358 U.S. 68, 79 S.Ct. 107, 3 L.Ed.2d 34 (1958), may be justified as an exercise of our supervisory power over the lower federal courts, a proper respect for the independence of the state systems requires that as a general rule we deal with appeals from their judgments on the merits.
4
Since Art. III of the Constitution limits our jurisdiction to cases and controversies, we have occasionally dismissed a state appeal as moot, In re Sarner, 361 U.S. 233, 80 S.Ct. 368, 4 L.Ed.2d 350 (1960); Castellano v. Commission of Investigation, 361 U.S. 7, 80 S.Ct. 51, 4 L.Ed.2d 49 (1959), and we may be compelled to do so even though a state court has found a justiciable controversy under its own law, see Richardson v. Ramirez, 418 U.S. 24, 36, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974). But there has been no suggestion of mootness here.
5
Indeed, all there is here is an apparent preference on the part of the Court not to decide the merits of this case just now. This is not, in my opinion, a defensible exception to the principle that we must treat appeals on their merits. I conclude that the federal constitutional claims rejected by the Supreme Court of California have no merit.* Accordingly, I would dismiss the appeal for want of a substantial federal question. If other constitutional claims arise out of the reopened proceedings, they should be presented in an appeal from a subsequent final judgment.
*
I am satisfied that, for purposes of our jurisdiction under 28 U.S.C. § 1257, the judgment of the Supreme Court of California is final. That judgment, denying appellants' petition for review, has finally rejected their claim that the commission proceedings were constitutionally defective. That court has not exercised any "latent power . . . to reopen or revise its judgment." Market St. R. Co. v. Railroad Comm'n, 324 U.S. 548, 551, 65 S.Ct. 770, 89 L.Ed. 1171 (1945). I fail to see how the subsequent actions of the parties can disturb the finality of that judgment. Nor does the Court suggest otherwise.
| 78
|
434 U.S. 5
98 S.Ct. 24
54 L.Ed.2d 4
COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, et al.,v.Rudolph A. RICHARDS et al.
No. 76-1418.
Oct. 11, 1977.
Rehearing Denied Nov. 28, 1977.
See 434 U.S. 976, 98 S.Ct. 535.
PER CURIAM.
1
The motion of D. C. Federation of Civic Associations et al. for leave to file a brief as amici curiae and the petition for a writ of certiorari are granted.
2
To stem the flow of traffic from commercial and industrial districts into adjoining residential neighborhoods, Arlington County, Va., adopted zoning ordinance § 29D. The ordinance directs the County Manager to determine those residential areas especially crowded with parked cars from outside the neighborhood.1 Free parking permits are then issued to residents of the designated areas for their own vehicles, to persons doing business with residents there, and to some visitors. To park an automobile without a permit in a restricted area between 8 a. m. and 5 p. m. on weekdays is a misdemeanor.
3
Acting under the ordinance, the County Manager designated a restricted area in Aurora Highlands, a residential neighborhood near a large commercial and office complex. Commuters who worked in this complex and had regularly parked in the area sued in the Circuit Court of Arlington County to enjoin the enforcement of the ordinance on state and federal constitutional grounds. The Virginia Supreme Court ultimately held that the ordinance violated the Equal Protection Clause of the Fourteenth Amendment.2
4
As stated in its preamble, the Arlington ordinance is intended
5
"to reduce hazardous traffic conditions resulting from the use of streets within areas zoned for residential uses for the parking of vehicles by persons using districts zoned for commercial or industrial uses . . . ; to protect those districts from polluted air, excessive noise, and trash and refuse caused by the entry of such vehicles; to protect the residents of those districts from unreasonable burdens in gaining access to their residences; to preserve the character of those districts as residential districts; to promote efficiency in the maintenance of those streets in a clean and safe condition; to preserve the value of the property in those districts; and to preserve the safety of children and other pedestrians and traffic safety, and the peace, good order, comfort, convenience and welfare of the inhabitants of the County."
6
Conceding the legitimacy of these goals, the Virginia Supreme Court found that the ordinance's discrimination between residents and nonresidents "bears no reasonable relation to [the regulation's] stated objectives," and, therefore, that "the ordinance on its face offends the equal protection guarantee of the 14th Amendment." 217 Va. 645, 651, 231 S.E.2d 231, 235. We disagree.
7
To reduce air pollution and other environmental effects of automobile commuting, a community reasonably may restrict on-street parking available to commuters, thus encouraging reliance on car pools and mass transit. The same goal is served by assuring convenient parking to residents who leave their cars at home during the day. A community may also decide that restrictions on the flow of outside traffic into particular residential areas would enhance the quality of life there by reducing noise, traffic hazards, and litter. By definition, discrimination against nonresidents would inhere in such restrictions.3
8
The Constitution does not outlaw these social and environmental objectives, nor does it presume distinctions between residents and nonresidents of a local neighborhood to be invidious. The Equal Protection Clause requires only that the distinction drawn by an ordinance like Arlington's rationally promote the regulation's objectives. See New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976); Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797 (1974). On its face, the Arlington ordinance meets this test.
9
Accordingly, the judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
10
It is so ordered.
11
Mr. Justice MARSHALL would grant the petition for certiorari and set the case for oral argument.
1
This condition is met when "the average number of vehicles [operated by persons whose destination is a commercial or industrial district] is in excess of 25% of the number of parking spaces on such streets and the total number of spaces actually occupied by any vehicles exceeds 75% of the number of spaces on such streets on the weekdays of any month . . . ."
2
Although the state trial court found the ordinance invalid under the State and Federal Constitutions, the State Supreme Court rested its decision solely on the Equal Protection Clause of the Fourteenth Amendment.
3
Restrictions on nonresident parking have sparked considerable litigation. See, e. g., South Terminal Corp. v. EPA, 504 F.2d 646, 671-676 (CA1 1974) (restrictions upheld); Friends of the Earth v. EPA, 499 F.2d 1118, 1125 (CA2 1974) (restrictions upheld); Commonwealth v. Petralia, --- Mass. ---, 362 N.E.2d 513 (1977) (restrictions upheld); State v. Whisman, 24 Ohio Misc. 59, 263 N.E.2d 411 (Ct. Com. Pleas, 1970) (restrictions invalidated); Georgetown Assn. of Businessmen v. District of Columbia, Civ. No. 7242-76 (D.C.Super.Ct., Aug. 9, 1976) (restrictions preliminarily enjoined). The United States as amicus curiae notes that parking restrictions to discourage automobile commuting have been recommended by the Environmental Protection Agency to implement the Clean Air Amendments of 1970. See 38 Fed.Reg. 30629 (1973).
| 78
|
434 U.S. 12
98 S.Ct. 76
54 L.Ed.2d 199
GENERAL ATOMIC COMPANYv.Edwin L. FELTER, Judge, et al.
No. 76-1640.
Oct. 31, 1977.
>>PER CURIAM.
1
The petition for a writ of certiorari is granted.
2
General Atomic Co. (GAC) challenges the validity of an injunction issued by a New Mexico state court restraining it from filing and prosecuting actions against United Nuclear Corp. (UNC) in federal court. We reverse because under Donovan v. Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), it is not within the power of state courts to bar litigants from filing and prosecuting in personam actions in the federal courts.
3
The state-court injunction was issued in connection with one of several lawsuits arising from contracts entered into by UNC and various utility companies providing for the supply by UNC of uranium. GAC subsequently succeeded to UNC's rights and obligations under the utility contracts and, pursuant to a 1973 agreement, UNC became obligated to supply GAC with uranium required under the utility contracts. As the result of a more than fivefold increase in the price of uranium between 1973 and mid-1975, UNC stopped delivery of the uranium and in August 1975 filed a declaratory judgment action in the District Court of Santa Fe County, N. M., against GAC and its constituent partners seeking to avoid its obligations under the uranium supply contract.1 In January 1976, GAC filed an interpleader complaint in the United States District Court for the District of New Mexico against UNC and four utilities seeking determinations binding on all parties as to their respective rights and obligations under its 1973 uranium supply agreement with UNC and its contracts to supply uranium to the utilities. The District Court dismissed the interpleader action on motion of all defendants on March 2, 1976, because of the lack of subject-matter jurisdiction.2 This dismissal, however, did not conclude the federal-court litigation. By early March 1976, the utilities had brought the following three federal proceedings against GAC: (1) Indiana & Michigan Electric Co. (I&M) v. GAC (an action for damages and specific performance filed in the Southern District of New York); (2)Commonwealth Edison Co. v. GAC (an action to compel arbitration filed in the Northern District of Illinois); (3) Duke Power Co. v. GAC (a demand for arbitration filed in the Western District of North Carolina).
4
On March 15, 1976, UNC, after being warned by I&M that GAC might attempt to implead it in the Southern District of New York action, obtained ex parte from the Santa Fe court a temporary order restraining GAC from " 'instituting suit or filing a third-party complaint against [UNC].' "3 On April 2, 1976, after a hearing, the Santa Fe court issued a preliminary injunction broadly restraining GAC from filing or prosecuting any original, third-party, or arbitration actions relating to the subject matter of the Santa Fe lawsuit or including UNC as a party in any actions.4 Two actions previously filed in New Mexico federal court were exempted from the injunction. The New Mexico Supreme Court granted an alternative writ of prohibition on April 14, 1976, staying the enforcement of the injunction. Immediately after oral argument, on June 16, 1976, however, the court, without opinion, quashed the writ as improvidently granted. We subsequently granted GAC's petition for certiorari, vacated the judgment of the New Mexico Supreme Court, and remanded the cause to that court to consider whether its judgment was based upon federal or state grounds, or both. 429 U.S. 973, 97 S.Ct. 479, 50 L.Ed.2d 581 (1976).
5
Upon remand, the New Mexico Supreme Court issued an opinion5 reaffirming its prior judgment and sustaining the injunction on the ground that its issuance was within the inherent equity jurisdiction of the Santa Fe court and was not prohibited by Donovan v. Dallas, supra. It thought that Donovan is not applicable "where a party is currently proceeding in federal court and where any further federal action would be based upon the same issues and events for the purpose of harassment,"6 and because the Santa Fe court's injunction, unlike that adjudicated in Donovan, "does not directly or indirectly affect any proceeding in the district court or appellate courts of the United States where jurisdiction has attached."7 We conclude that the New Mexico Supreme Court's interpretation of Donovan is untenable and that the injunction is in direct conflict with that decision and the Supremacy Clause of the Constitution.
6
In Donovan v. Dallas, supra, a plaintiff class sought an injunction against construction of an airport runway and issuance of municipal bonds for that purpose. After losing in state court and exhausting their appeals, many of the named plaintiffs together with a group of new plaintiffs filed an action in United States District Court raising issues substantially identical to those already litigated in the state action and seeking similar relief. The city of Dallas moved to dismiss the federal action and, as the result of a favorable judgment in the Texas Supreme Court, obtained an injunction from the Texas Court of Civil Appeals prohibiting all members of the original class from further prosecution of the pending federal action and from " 'filing or instituting . . . any further litigation, law suits or actions in any court, the purpose of which is to contest the validity of the airport revenue bonds . . . .' " 377 U.S., at 410, 84 S.Ct. at 1581. When the District Court granted the city's motion to dismiss following the issuance of the injunction, some of the plaintiffs took an appeal and others filed a second federal action seeking to enjoin Texas state courts from enforcing the injunction. Subsequently, the Texas Court of Civil Appeals found in contempt both the plaintiffs who had appealed and those who had filed the second federal action. We review the convictions of both sets of plaintiffs and held the injunction to be invalid because "state courts are completely without power to RESTRAIN FEDERAL-COURT PROCEEDINGS IN IN PERSONAM ACTIONS . . . ." id., at 413, 84 S.Ct. at 1582. Our holding was premised on the fact that the right to litigate in federal court is granted by Congress and, consequently, "cannot be taken away by the State." Ibid.
7
The New Mexico Supreme Court clearly erred in concluding that Donovan precludes state courts only from enjoining litigants from proceeding further with federal suits in which jurisdiction has already attached at the time of the issuance of the injunction but permits state-court injunctions against additional suits in federal court. In Donovan, the Texas Supreme Court not only ordered an injunction against further prosecution of the then-pending federal case but, because "[t]here is indication in the history of this matter that it has reached the point of vexatious and harassing litigation," also authorized the Court of Civil Appeals to enjoin the filing of additional suits if it concluded that such suits "may be filed."8 The injunction then issued by the Court of Civil Appeals forbade the filing of any new federal suits as well as further proceedings in pending actions; and the ensuing contempt judgments punished both the continued prosecution of the pending federal action and the filing of the additional suit in federal court.9 We reversed the judgment of the Texas Supreme Court authorizing the injunction and also vacated all the contempt judgments. It is therefore clear from Donovan that the rights conferred by Congress to bring in personam actions in federal courts are not subject to abridgment by state-court injunctions, regardless of whether the federal litigation is pending or prospective.
8
We also reject the New Mexico Supreme Court's attempt to distinguish Donovan on the ground that GAC was currently proceeding in federal court10 and that any additional suits would be for the purpose of harassment and therefore enjoinable. In authorizing an injunction against further federal proceedings, the Texas Supreme Court expressly recognized the indication of "vexatious and harassing litigation." Indeed, Donovan presented as compelling a case as there could be for permitting a state court to enjoin the further prosecution of vexatious federal proceedings. It involved a suit filed in federal court after the issuance of a final state-court judgment deciding the principal claims pressed in the federal action adversely to the federal plaintiffs. Moreover, as the Donovan opinion pointed out, the pendency of the federal action had the effect of rendering the state-court judgment ineffective, because Texas law provided that the bonds could not be issued while litigation challenging their validity was pending. We nevertheless overturned the state-court injunction.
9
There is even less basis for the injunction in this case. Here there is no final state-court judgment, since UNC's original action against GAC in the Santa Fe court has not yet been tried. In addition, GAC's opportunity to fairly litigate the various claims arising from this complex action would be substantially prejudiced if the injunction were allowed to stand. What the New Mexico Supreme Court has described as "harassment' is principally GAC's desire to defend itself by impleading UNC in the federal lawsuits and federal arbitration proceedings brought against it by the utilities.11 This, of course, is something which GAC has every right to attempt to do under Fed.Rule Civ.Proc. 14 and the Federal Arbitration Act.12 The right to pursue federal remedies and take advantage of federal procedures and defenses in federal actions may no more be restricted by a state court here than in Donovan. Federal courts are fully capable of preventing their misuse for purposes of harassment.
10
The judgment of the New Mexico Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
11
It is so ordered.
12
Mr. Justice BLACKMUN would not dispose of this case summarily but would grant certiorari and hear argument.
13
Mr. Justice REHNQUIST, dissenting.
14
The Court holds that a state court lacks the power to enjoin persons subject to its jurisdiction from initiating duplicative and vexatious litigation in the federal courts, litigation which had not been commenced at the time of the state-court injunction. While this conclusion is arguably supported by a portion of the holding of Donovan v. Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), it is in many ways contrary to the reasoning of that decision, and undermines the historic power of courts of equity to guard against abuse of judicial proceedings. Because Donovan involves a procedural rule which has application in myriad situations, I believe that its holding should be in part re-examined.
15
In Swift & Co. v. Wickham, 382 U.S. 111, 116, 86 S.Ct. 258, 261, 15 L.Ed.2d 194 (1965), the Court said:
16
"Unless inexorably commanded by statute, a procedural principle of this importance should not be kept on the books in the name of stare decisis once it is proved to be unworkable in practice; the mischievous consequences to litigants and courts alike from the perpetuation of an unworkable rule are too great."
17
The author of Donovan was particularly cognizant of the sensitive relationship between state and federal courts. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Atlantic Coast Line R. Co. v. Locomotive Engineers, 298 U.S. 281, 287, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970). Because the rule in Donovan implicates that relationship, I would not extend its holding as the Court now does.
18
The Court in Donovan based its decision on the "general rule" that "state and federal courts would not interfere with or try to restrain each other's proceedings." 377 U.S., at 412, 84 S.Ct. at 1582. Such a general rule of parity implies that where a federal district court has power to enjoin the institution of proceedings in state court, a state court must have a similar power to forbid the initiation of vexatious litigation in federal court.
19
Congress, in enacting the Anti-Injunction Act limiting the authority of United States courts to stay proceedings in any court of a State, 28 U.S.C. § 2283, excepted from the limitation an injunction "where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." See Mitchum v. Foster, 407 U.S. 225, 231-236, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); Atlantic Coast Line, supra, at 294-296, 90 S.Ct. 1739. Cf. Kline v. Burke Constr. Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922). If Congress saw fit to create such an exception to the "[l]egislative policy [which] is here expressed in a clearcut prohibition," Clothing Workers v. Richman Bros. Co., 348 U.S. 511, 516, 75 S.Ct. 452, 455, 99 L.Ed. 600 (1955), it could not have intended to deny the same limited injunctive authority to state courts of general jurisdiction. Neither the Supremacy Clause of Art. VI of the Constitution or the congressional grants of jurisdiction to federal courts in any way militate against the conclusion that both state and federal courts possess the authority to protect jurisdiction which they have acquired from being undercut or nullified by suits later instituted in the courts of the other jurisdiction.
20
Unlike the Texas Court of Civil Appeals, in Donovan, the New Mexico District Court in this case enjoined only the initiation of new proceedings, specifically excepting two federal-court actions already begun by petitioner and its constituent partners. Any ambiguity inherent in the wording of the District Court's injunction with regard to other proceedings has been authoritatively resolved by the Supreme Court of New Mexico, which held: "The injunction is directed only towards the institution of future litigation wherein no federal or state court has yet to acquire jurisdiction." 90 N.M. 120, 124, 560 P.2d 541, 545 (1977). The existence of power in the state courts to guard against the abuse of the federal courts for purposes of harassment is not foreclosed by Donovan, even though this Court, in vacating the contempt citation of those parties who initiated a federal action subsequent to the state order, necessarily held that the Texas court lacked such power in that instance. There, in the subsequent action, the federal plaintiffs sought to enjoin the Supreme Court of Texas from interfering with a pending action which this Court held they had a right to maintain. The conclusion that the New Mexico court has the power to forbid petitioner from involving respondent in a multitude of separate actions with different parties does not undercut the holding of Donovan that a federal plaintiff may seek to protect his right to proceed with a pending suit.
21
The Supreme Court of New Mexico has acted consistently with both the holding and the reasoning of Donovan, and I would therefore affirm its judgment.
1
After one of the defendants removed the entire case to the United States District Court for the District of New Mexico under 28 U.S.C. § 1441(c), UNC on December 31, 1975, took a voluntary nonsuit as of right pursuant to Fed.Rule Civ.Proc. 41(a)(1)(i). The same day UNC instituted a new action virtually identical to the previous one, except that it named only GAC as a defendant.
2
The Tenth Circuit affirmed the dismissal on April 8, 1977. General Atomic Co. v. Duke Power Co., 553 F.2d 53. On January 23, 1976, Gulf Oil Corp., one of GAC's constituent partners, had filed a declaratory judgment action in the United States District Court for the District of New Mexico concerning the validity of a release by UNC of certain claims against it. The action was dismissed on September 29, 1976, on the ground that the issue presented could be decided in the litigation pending in the Santa Fe court.
3
Pet. for Cert. 9-10. UNC had originally applied for a temporary restraining order on January 19, 1976, in the Santa Fe court to prevent GAC from instituting any additional suits against UNC. This motion was denied.
4
"IT IS THEREFORE ORDERED that General Atomic Company, its partners, privies, agents, servants and employees, are hereby preliminarily enjoined and prohibited from filing or prosecuting any other action or actions against United Nuclear Corporation in any other forum relating to any rights, claims or the subject matter of this action. This injunction prohibits the institution or prosecution of ordinary litigation, third party proceedings, cross-claims, arbitration proceedings or any other method or manner of instituting or prosecuting actions, claims or demands relating to the subject matter of this lawsuit, or including United Nuclear Corporation as a party thereto. However, the case of Gulf Oil Corporation v. United Nuclear Corporation, Civil Cause No. 76-032-B, currently pending in the United States District Court for the District of New Mexico, is excepted from the operation of this preliminary injunction, as is the appeal currently pending before the Tenth Circuit Court of Appeals in General Atomic Co. v. Duke Power Company, et al., No. 76-1152. The injunction herein against defendant shall bind Plaintiff to the same terms." App. to Pet. for Cert. 3a-4a.
5
90 N.M. 120, 560 P.2d 541 (1977).
6
Id., at 123, 560 P.2d, at 544.
7
Id., at 124, 560 P.2d, at 545. This statement is not factually accurate. See n. 11, infra.
8
Dallas v. Dixon, Tex., 365 S.W.2d 919, 927 (1963).
9
377 U.S., at 410-411, 84 S.Ct. 1579; Dallas v. Brown, 368 S.W.2d 240 (Tex.Civ.App.1963).
10
The New Mexico Supreme Court apparently ignored the fact that both of the federal actions exempted from the injunction had been dismissed long before the issuance of its opinion. Indeed, the interpleader action was dismissed prior to the issuance of the injunction. See supra, at 13 and n. 2.
11
As a result of the injunction, GAC was even prevented from impleading UNC in the Southern District of New York action instituted by I&M against GAC prior to its issuance. GAC did subsequently succeed in obtaining the dismissal of this action pursuant to Fed.Rule Civ.Proc. 19 on the ground that UNC was a necessary party which could not be joined because of the injunction, but only at the price of surrendering its right to litigate its disputes with I&M in a federal forum. Indiana & Michigan Electric Co. v. Gulf Oil Corp., 76 Civ. 881 (S.D.N.Y. Jan. 5, 1977). The injunction has also prevented GAC from asserting claims against UNC under the arbitration provision of the 1973 uranium supply agreement in the pending arbitration proceeding instituted against GAC and UNC by Commonwealth Edison prior to its issuance, even though the District Court granted Commonwealth's demand for arbitration and the Seventh Circuit has affirmed. Commonwealth Edison Co. v. Gulf Oil Corp., 400 F.Supp. 888 (N.D.Ill.1975), aff'd, 541 F.2d 1263 (1976). In addition, the Western District of North Carolina federal court has refused to stay arbitration between Duke and GAC in a proceeding also instituted prior to the injunction, despite GAC's contention that UNC was an indispensable party to any such arbitration proceeding which it was prevented from impleading by the injunction. The court acknowledged, however, that UNC would be a proper party to the proceeding. General Atomic Co. v. Duke Power Co., 420 F.Supp. 215 (1976).
As the Tenth Circuit recognized in General Atomic Co. v. Duke Power Co., 553 F.2d, at 56, 58, GAC is exposed to a substantial risk of inconsistent adjudications in separate proceedings. For example, GAC fears that the arbitrators may find that GAC is obligated to deliver uranium to Commonwealth at the contract prices, while the Santa Fe court may hold, on the contrary, that GAC is not so obligated and excuse UNC from performance to GAC on the ground that its obligations are contingent upon GAC's contractual obligations to Commonwealth. Pet. for Cert. 20-22.
12
9 U.S.C. § 2 et seq. It is impossible, of course, to foresee all the occasions during the course of this complex litigation in which GAC would justifiably assert claims in federal proceedings.
| 910
|
434 U.S. 22
98 S.Ct. 81
54 L.Ed.2d 207
Peter RINALDIv.UNITED STATES.
No. 76-6194.
Nov. 7, 1977.
[Syllabus intentionally omitted]
PER CURIAM.
1
Petitioner's participation in a plot to rob safe-deposit boxes of the Doral Beach Hotel in Miami Beach, Fla., violated the laws of both the State of Florida and the United States. He has been tried, convicted, and sentenced imprisonment by both sovereigns. He claims that his federal conviction was obtained in violation of established federal policy against multiple prosecutions for the same offense and, for that reason, should be set aside. The Solicitor General agrees and submits that the Court should summarily "vacate the judgment of the court of appeals and remand the case to the district court with instructions to dismiss the indictment."1 Based on our independent evaluation of the unusual circumstances disclosed by this record, we conclude that such summary disposition is appropriate.
2
In February 1973, petitioner was charged with state offenses arising out of the Doral Beach Hotel robbery.2 In March 1973, an indictment was returned in the United States District Court for the Southern District of Florida, charging him with conspiracy to affect interstate commerce by robbery in violation of the Hobbs Act, 18 U.S.C. § 1951.3 In May, petitioner was convicted of the state charges in the Dade County Circuit Court and sentenced to six years' imprisonment.4 A subsequent federal trial ended in a mistrial. Thereafter, the District Court questioned Government counsel regarding the need for another trial in view of petitioner's state convictions. Government counsel responded that he had been instructed by his superiors at the Department of Justice to pursue the federal prosecution vigorously because of their concern that the state convictions might be reversed on appeal. After a second jury trial, petitioner was convicted on the Hobbs Act charge; the District Court imposed a 12-year sentence to run concurrently with the state sentence.
3
On appeal to the United States Court of Appeals for the Fifth Circuit, petitioner argued that his conviction had been obtained in violation of a longstanding federal policy against multiple prosecutions for the same act. See Petite v. United States, 361 U.S. 529, 530, 80 S.Ct. 450, 451, 4 L.Ed.2d 490 (1960).5 The Government acknowledged that its Petite policy had been violated and moved the Court of Appeals to remand the case to the District Court to permit it to seek a dismissal of the indictment. The Court of Appeals granted the motion to remand.
4
The Government then filed a motion to dismiss the indictment pursuant to Fed.Rule Crim.Proc. 48(a).6 Noting that the Rule requires "leave of court," the District Court denied the motion because (1) the motion was not made until after the trial had been completed; and (2) the prosecutor had acted in bad faith by representing to the District Court that he had been properly instructed to maintain the prosecution notwithstanding the fact that petitioner had already been convicted of a state offense.7 The Government, joined by petitioner and his codefendant Washington, appealed from the denial of the motion to dismiss.
5
A divided panel of the Fifth Circuit affirmed, In re Washington, 531 F.2d 1297 (1976). The Court of Appeals then granted a petition for rehearing en banc and, by a vote of 7 to 6, reaffirmed the panel's holding. In re Washington, 544 F.2d 203 (1976). All members of the court agreed that the Government's motion to dismiss was timely,8 but they disagreed on the question whether the prosecutor's bad faith justified the District Court's refusal to set aside defendant's conviction.
6
The majority was of the view that the Government's unclean hands gave the District Court adequate reason to deny it relief,9 and that the defendant had no right to have an otherwise valid conviction dismissed simply because the Justice Department violated its own procedures.10 The dissenters were of the view that the District Court's inquiry should have been limited to the propriety of the Government's motivation in seeking a dismissal;11 under their view, the earlier misconduct was irrelevant and could not justify the judicial imposition of multiple convictions on the defendant.12
7
The policy described in the Petite case limits the federal prosecutor in the exercise of his discretion to initiate, or to withhold, prosecution for federal crimes. The policy is useful to the efficient management of limited executive resources and encourages local responsibility in law enforcement.13 But it also serves the more important purpose of protecting the citizen from any unfairness that is associated with successive prosecutions based on the same conduct.
8
In this respect, the policy represents the Government's response to repeated expressions of concern by Members of this Court. In United States v. Lanza, 260 U.S. 377, 383, 43 S.Ct. 141, 143, 67 L.Ed. 314 (1922), for example, Mr. Chief Justice Taft quoted the following passage from Fox v. Ohio, 5 How. 410, 435, 12 L.Ed. 213 (1847):
9
"It is almost certain, that, in the benignant spirit in which the institutions both of the state and federal systems are administered, an offender who should have suffered the penalties denounced by the one would not be subjected a second time to punishment by the other for acts essentially the same, unless indeed this might occur in instances of peculiar enormity, or where the public safety demanded extraordinary rigor."
10
What has come to be known as the Petite policy was formulated by the Justice Department in direct response to this Court's opinions in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), holding that the Constitution does not deny the State and Federal Governments the power to prosecute for the same act. As these decisions recognize, in our federal system the State and Federal Governments have legitimate, but not necessarily identical, interests in the prosecution of a person for acts made criminal under the laws of both. These cases reflect the concern that if the Double Jeopardy Clause were applied when the sovereign with the greater interest is not the first to proceed, the administration of criminal justice may suffer. Bartkus v. Illinois, supra, 359 U.S. at 137, 79 S.Ct., at 685; Abbate v. United States, supra, 359 U.S., at 195, 79 S.Ct., at 670. Yet mindful of the potential for abuse in a rule permitting duplicate prosecutions, the Court noted that "[t]he greatest self-restraint is necessary when that federal system yields results with which a court is in little sympathy." Bartkus v. Illinois, supra, 359 U.S. at 138, 79 S.Ct., at 686.
11
In response to the Court's continuing sensitivity to the fairness implications of the multiple prosecution power, the Justice Department adopted the policy of refusing to bring a federal prosecution following a state prosecution except when necessary to advance compelling interests of federal law enforcement.14 The Petite policy was designed to limit the exercise of the power to bring successive prosecutions for the same offense to situations comporting with the rationale for the existence of that power. Although not constitutionally mandated, this Executive policy serves to protect interests which, but for the "dual sovereignty" principle inherent in our federal system, would be embraced by the Double Jeopardy Clause. In light of the parallel purposes of the Government's Petite policy and the fundamental constitutional guarantee against double jeopardy, the federal courts should be receptive, not circumspect, when the Government seeks leave to implement that policy.
12
Here, the Government filed a motion under Fed.Rule Crim.Proc. 48(a) seeking "leave of court" to dismiss the federal charges against petitioner. Under the standard applied by the Court of Appeals, the District Court was empowered to withhold leave if the Government's decision to terminate this prosecution clearly disserved the public interest. United States v. Cowan, 524 F.2d 504, 513 (CA5 1975).15 Pursuant to the instructions of a superior at the Justice Department, Government trial counsel represented to the District Court that the United States had decided to vigorously prosecute the federal charges against petitioner in spite of the prior state prosecution. In fact, however, the federal prosecution had not been authorized as required by the Government's Petite policy. The Court of Appeals considered the prosecutor's representations incompatible with the public interest in preserving the integrity of the courts. The salient issue, however, is not whether the decision to maintain the federal prosecution was made in bad faith but rather whether the Government's later efforts to terminate the prosecution were similarly tainted with impropriety. Our examination of the record has not disclosed (and we will not presume) bad faith on the part of the Government at the time it sought leave to dismiss the indictment against petitioner. The decision to terminate this prosecution, based as it was on the Petite policy, was motivated by considerations which cannot fairly be characterized as "clearly contrary to manifest public interest." 524 F.2d, at 513.16
13
The overriding purpose of the Petite policy is to protect the individual from any unfairness associated with needless multiple prosecutions. The defendant, therefore, should receive the benefit of the policy whenever its application is urged by the Government.17 Without derogating from the concern expressed by the Court of Appeals regarding the actions of certain Government officials at an earlier stage in this prosecution, we agree with the Solicitor General that "[n]o action by the Department or the Court can now replace the waste of judicial and prosecutorial resources expended in obtaining petitioner's conviction . . . [and] no societal interest would be vindicated by punishing further a defendant who has already been convicted and has received a substantial sentence in state court and who, the Department has determined, should not have been prosecuted by the federal government."
14
It was, therefore, an abuse of the discretion of the District Court to refuse to grant the Government's motion on the ground that the violation of the Petite policy in this case resulted from prosecutorial misconduct rather than inadvertence. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated, and the case is remanded to the District Court for the purpose of dismissing the indictment.
15
It is so ordered.
16
Mr. CHIEF JUSTICE BURGER dissents.
17
Mr. Justice REHNQUIST, with whom Mr. Justice WHITE joins, dissenting.
18
In Watts v. United States, 422 U.S. 1032, 95 S.Ct. 2648, 45 L.Ed.2d 688 (1975), this Court, with three Justices dissenting, remanded a federal criminal case with instructions to dismiss the indictment because of the concession of the Solicitor General that the Justice Department had accidentally violated its own Petite policy. See also Ackerson v. United States, 419 U.S. 1099, 95 S.Ct. 767, 42 L.Ed.2d 796 (1975); Hayles v. United States, 419 U.S. 892, 95 S.Ct. 168, 42 L.Ed.2d 136 (1974). Whatever may be the propriety of our assisting in the enforcement of the Justice Department's internal Petite policy, the Court today places its imprimatur on a quite different and unsettling prosecutorial policy. Under this new policy, the Government prosecutes under federal laws individuals who have already been tried and convicted of violating similar state laws in order to protect against the possibility of the state convictions being reversed on appeal, but the policy contemplates that the federal prosecutions will be dismissed, even after entry of guilty verdicts, if the state convictions are ultimately affirmed. According to the Court of Appeals:
19
"[T]he Government attorney conceded that a 'responsible person' within the Department of Justice . . . was aware that the Petite Policy was being violated through its prosecution of defendants, but nevertheless, out of his fear that the state convictions would be reversed on appeal, instructed the trial attorney to proceed with the case; only after a Florida appellate court affirmed the state convictions and after defendants raised the Petite Policy on appeal did the Government move for dismissal. . . . [According to the Government attorney], the position of the Department of Justice is not that the prosecution should never have been brought, but that once the state convictions had been affirmed the Government could properly have moved to dismiss the federal indictment against defendants. Indeed, he states that had permission to prosecute been sought from an Assistant Attorney General by the 'responsible person' in charge of the case it might well have been given and hence, there would have been no violation of the Petite Policy. Had that event occurred, . . . it would have then been absolutely proper, once the Florida appellate court affirmed the state conviction on appeal, for the Department of Justice to rescind, retroactively, its authorization of the prosecution and now, finding the Petite Policy to have been violated by a federal trial for an offense for which a state prosecution was made, to seek a dismissal based on this violation of the policy and the interest against duplicitous prosecutions that it seeks to promote." In re Washington, 544 F.2d 203, 207.*
20
Federal Rule Crim.Proc. 48(a) allows the United States to move to dismiss an indictment only "by leave of court." This proviso was specifically added as an amendment to the original draft, which had provided for automatic dismissal upon the motion of the United States, and would seem clearly directed toward an independent judicial assessment of the public interest in dismissing the indictment. Cf. United States v. Cowan, 524 F.2d 504 (CA5 1975). Here, both the District Court and the Court of Appeals concluded that dismissal would not be in the public interest. I cannot find this conclusion an abuse of the discretion given the lower courts by Rule 48(a). As the Court of Appeals reasoned, "the Government's attempt to manipulate the use of judicial time and resources through its capricious, inconsistent application of its own policy clearly constitutes bad faith and a violation of the public interest; our sanction of such conduct would invite future misconduct by the Government." 544 F.2d, at 209.
21
In the past, the Court has ordered indictments dismissed upon the Government's concession that it violated its own Petite policy without discussing the justification for its action. Here, in its first full opinion on the subject, the Court again fails to enunciate why federal courts must reverse a valid conviction because of the Government's admission of administrative error not going to the guilt or innocence of the defendant. Cf.Watts, supra, 422 U.S. at 1032-1038, 95 S.Ct. 2648, 2651 (BURGER, C. J., dissenting). The apparent inability of the Court to agree on a rationale for enforcing the Government's Petite policy at its request suggests that this case is inappropriate for summary disposition and should be set for full argument.
1
Memorandum for United States, 9.
2
The state offenses were conspiracy to commit robbery, conspiracy to commit grand larceny, and carrying a concealed weapon.
3
Section 1951 provides in part:
"(a) Whoever in any way or degree . . . affects commerce . . . by robbery . . . or conspires so to do . . . shall be fined not more than $10,000 or imprisoned not more than twenty years, or both."
4
He was sentenced to concurrent terms of five years' imprisonment on the conspiracy to commit robbery and grand larceny counts and a consecutive term of one year's imprisonment on the weapons count. On the State's confession of error, petitioner's conviction of conspiracy to commit grand larceny was reversed on appeal. His convictions on the other two counts were affirmed. See Scaldeferri v. State, 294 So.2d 407 (Fla.App.), cert. denied sub nom., Pompeo v. State, 303 So.2d 21 (Fla.), cert. denied sub nom., Washington v. Florida, 419 U.S. 993, 95 S.Ct. 304, 42 L.Ed.2d 266 (1974).
5
The Petite policy is most frequently applied against duplicating federal-state prosecutions. As stated by the Department of Justice, under that policy a federal trial following a state prosecution or the same act or acts is barred "unless the reasons are compelling." A United States Attorney contemplating a federal prosecution in these circumstances is required to obtain authorization from an appropriate Assistant Attorney General. In this case, the Justice Department official who instructed trial counsel to insist upon a retrial had not obtained the requisite approval.
But, as the Petite case itself illustrates, the policy also encompasses successive federal prosecutions arising out of the same transaction. In that case, the Solicitor General represented that "it is the general policy of the Federal Government 'that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement.' The Solicitor General on behalf of the Government represents this policy as closely related to that against duplicating federal-state prosecutions, which was formally defined by the Attorney General of the United States in a memorandum to the United States Attorneys. (Department of Justice Press Release, Apr. 6, 1959)." 361 U.S., at 530-531, 80 S.Ct., at 451.
6
Rule 48(a) states:
"The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant."
7
See n. 5, supra.
8
The prior-authorization requirement in the Petite policy ensures that the Department of Justice will normally make the "compelling reasons" determination prior to commencement of the federal prosecution. On occasion, however, a prosecution is initiated and a conviction obtained in violation of the policy. When the Solicitor General has discovered such a violation in a case pending before this Court, he has sought to remedy it by moving to have the case remanded to allow the Government to dismiss the indictment. Exercising our power to afford relief which is "just under the circumstances," 28 U.S.C. § 2106, we have granted the Government's motion on several occasions. See Watts v. United States, 422 U.S. 1032, 95 S.Ct. 2648, 45 L.Ed.2d 688 (1975); Ackerson v. United States, 419 U.S. 1099, 95 S.Ct. 769, 42 L.Ed.2d 796 (1975); Hayles v. United States, 419 U.S. 892, 95 S.Ct. 168, 42 L.Ed.2d 136 (1974); Cf. Redmond v. United States, 384 U.S. 264, 86 S.Ct. 1415, 16 L.Ed.2d 521 (1966); Marakar v. United States, 370 U.S. 723, 82 S.Ct. 1573, 8 L.Ed.2d 803 (1962); Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960).
9
The majority described the Government's bad faith in the following terms:
"In this case, an unidentified, but responsible, official within the Department authorized a federal prosecution with full knowledge that such a prosecution was forbidden by the Petite Policy. For the Government to attempt to dismiss by arguing that no compelling reason now exists for a separate federal conviction, when the considerations that allegedly imply a lack of 'compelling reason' were known as fully to the Government throughout both federal trials as now, does, for this court, constitute bad faith." 544 F.2d, at 208.
10
The majority stated:
"The fact that the Justice Department is now reconsidering its original decision to prosecute does not vest defendants with any right to have an otherwise valid conviction dismissed. . . . While a determination of such a motion obviously affects defendants, it is not a defendant's interest in avoiding a validly obtained conviction that we weigh in our examination of the propriety of . . . [the District Court's] order." Id., at 209.
11
They stated:
"[T]he withholding of leave [to dismiss] in this case was not justified. The motive of the prosecutor in moving for dismissal was based upon the Petite Policy which is not contrary to the public interest. The prosecutor may have acted in the conduct of the entire litigation in a manner not consistent with the public interest, but his motion to dismiss should not be tainted with that prior activity." Id., at 213 (emphasis in original).
12
The dissenters also questioned the logic of the majority's "bad faith" rationale:
"[I]n what has been determined and, indeed, confessed to have been bad faith, the government persisted in a prosecution and obtained, as a result of that bad faith, convictions. The majority holds today that, in order not to 'invite future misconduct by the Government,' we insist that the government be rewarded with the very convictions that it obtained through bad faith prosecutions and, we deny government counsel the right at long last to recant and in good faith dismiss the indictment." Id., at 210-211.
13
In announcing the policy, Attorney General Rogers stated:
"Cooperation between federal and state prosecutive officers is essential if the gears of the federal and state systems are to mesh properly. We should continue to make every effort to cooperate with state and local authorities to the end that the trial occur in the jurisdiction, whether it be state or federal, where the public interest is best served. If this be determined accurately, and is followed by efficient and intelligent cooperation of state and federal law enforcement authorities, then consideration of a second prosecution very seldom should arise." Dept. of Justice Press Release, Apr. 6, 1959, p. 3.
14
At the heart of the policy announced by Attorney General Rogers was the statement:
"It is our duty to observe not only the rulings of the Court but the spirit of the rulings as well. In effect, the Court said that although the rule of the Lanza case is sound law, enforcement officers should use care in applying it.
"Applied indiscriminately and with bad judgment it, like most rules of law, could cause considerable hardship. Applied wisely it is a rule that is in the public interest. Consequently as the Court clearly indicated—those of us charged with law enforcement responsibilities have a particular duty to act wisely and with self-restraint in this area." Ibid.
15
The words "leave of court" were inserted in Rule 48(a) without explanation. While they obviously vest some discretion in the court, the circumstances in which that discretion may properly be exercised have not been delineated by this Court. The principal object of the "leave of court" requirement is apparently to protect a defendant against prosecutorial harassment, e. g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant's objection. See, e. g., United States v. Cox, 342 F.2d 167, 171 (CA5), cert. denied, sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Woodring v. United States, 311 F.2d 417, 424 (CA8), cert. denied sub nom. Felice v. United States, 373 U.S. 913, 83 S.Ct. 1304, 10 L.Ed.2d 414 (1963). But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest. See United States v. Cowan, 524 F.2d 504 (CA5 1975); United States v. Ammidown, 162 U.S.App.D.C. 28, 33, 497 F.2d 615, 620 (1973). It is unnecessary to decide whether the court has discretion under these circumstances, since, even assuming it does, the result in this case remains the same.
16
In reaching a contrary conclusion, the Court of Appeals relied heavily on the remarks of a Government attorney during oral argument. Attempting to rebut the charge that the "responsible person" in the Justice Department who authorized this prosecution showed bad faith by not seeking the approval of the Attorney General, the Government attorney apparently contended it would be proper to continue a federal prosecution until the integrity of a prior state conviction was assured and then to seek dismissal of the federal charges. If counsel's argument represented the position of the United States, it would indeed mark a departure from the Petite policy. But we are persuaded that counsel's overzealous attempt to rationalize the prior conduct of the prosecution did not signal a new Executive policy on multiple prosecutions. The Solicitor General unequivocally states that the Government has strictly adhered to the Petite policy since its announcement in 1959. Memorandum for United States 3, 7. The Solicitor General represents further that the Government sought dismissal of the indictment in this case because it discovered on appeal from petitioner's federal conviction that the prosecution was initiated and maintained without the prior authorization required by the Petite policy. Id., at 3, 6-7. There is no suggestion in this case that the Assistant Attorney General charged with enforcement of the Petite policy was cognizant of the violation until shortly before the Government's request for leave to dismiss the indictment. In these circumstances, we cannot accept the conclusion of the Court of Appeals that the Government's decision to dismiss the indictment was made in bad faith.
17
The Court of Appeals thought it necessary to deprive petitioner of the policy's benefit in order to deter future misconduct by Government attorneys. As did the dissenters below, we fail to see how rewarding those responsible for the Petite policy violation with a conviction serves to deter prosecutorial misconduct. Indeed, a result which leaves intact a conviction obtained through a prosecution tainted by bad faith may encourage repetition of the impropriety disclosed by the record in this case.
*
The Solicitor General does not contradict or repudiate the position of the Government attorney who argued before the Court of Appeals. Under such circumstances, this Court should not casually reject the Court of Appeals' understanding of the position of the Department of Justice in this case, an understanding that the dissenters there apparently shared. According to the Solicitor General, when the Government's appellate counsel was informed that the prosecutor had not strictly followed the Justice Department's Petite policy, further consideration was given to the case within the Department and "it was determined that there were no compelling reasons to justify retroactive authorization of petitioner's prosecution." Memorandum for United States 3 (emphasis added). By this time, as the Court of Appeals noted, the state conviction was safely affirmed.
| 01
|
434 U.S. 35
98 S.Ct. 88
54 L.Ed.2d 218
CITIZENS AND SOUTHERN NATIONAL BANK, Petitioner,v.Nick BOUGAS.
No. 76-398.
Argued Oct. 3, 1977.
Decided Nov. 8, 1977.
Syllabus
r 12 U.S.C. § 94, which provides that actions against a national bank may be brought in any federal district court within the district in which the bank may be "established" or in any state court in the county or city in which the bank is "located" having jurisdiction in such cases, venue for a suit against a national bank brought in a state court need not be in the county where the bank's charter was issued but may be in the county in which the bank conducts its business at an authorized branch. Pp. 38-45.
138 Ga.App. 706, 227 S.E.2d 434, affirmed.
William C. Humphreys, Jr., Atlanta, Ga., for petitioner; Daniel B. Hodgson, Atlanta, Ga., on the brief.
Michael J. Kovacich, Decatur, Ga., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents an issue of state-court venue of a transitory cause of action against a national bank. The suit was filed in the state court of the county of the branch and not in the court of the different county specified in the bank's charter.
2
The governing statute is Rev.Stat. § 5198, 12 U.S.C. § 94:
3
"Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases."
4
The dispute obviously centers in the word "located" as it is employed in the statute.1
5
* Petitioner Citizens and Southern National Bank is a national banking association. It received its charter from the Comptroller of the Currency on May 2, 1927. The "place where its operations . . . are to be carried on,"2 is described in that charter as the "City of Savannah, in the County of Chatham and State of Georgia." App. 13. For some time now, however, the bank has done business not only at Savannah but also at branches, authorized under, 12 U.S.C. § 36, in other Georgia counties. Tr. of Oral Arg. 4. One of these branches is at Decatur in De Kalb County. See United States v. Citizens & Southern Nat. Bank, 422 U.S. 86, 92 n. 4, 94, 95 S.Ct. 2099, 2104-05, 45 L.Ed.2d 41 (1975). De Kalb County adjoins Fulton County; the city of Atlanta lies in both.
6
In late June 1975 respondent Bougas sued petitioner bank. His complaint was filed in the state court of De Kalb County. He sought actual and punitive damages for an alleged conversion of a $25,000 savings certificate issued to respondent and deposited by him as collateral for his son's note on which respondent had signed as surety.
7
The bank accompanied its answer to the complaint with a motion to dismiss respondent's suit "on the grounds of improper venue and lack of jurisdiction over Defendant." App. 9. It asserted that a national bank may be sued in a state court only "in the county in which its charter was issued," that is, for petitioner, only in Chatham County. Ibid. The De Kalb County Court denied that motion. App. to Pet. for Cert. A5. The Georgia Court of Appeals granted the bank's application for interlocutory appeal, but in due course affirmed. 138 Ga.App. 706, 227 S.E.2d 434 (1976).3 We granted certiorari, 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977), in order to resolve an apparent conflict, hereinafter noted, among state courts in their construction of the word "located" in 12 U.S.C. § 94, when a defendant national bank is conducting banking business at an authorized branch outside its charter county.
8
Two issues are suggested by the parties: (1) Where is a national bank "located," within the meaning of § 94, for purposes of a transitory action brought in a state court, when it conducts banking business at an authorized branch outside its charter county? (2) In any event, does its conduct of banking business at the branch constitute a waiver, actual or presumptive, of any venue restriction § 94 otherwise imposes? We decide the case adversely to the bank on the first issue and do not reach the question of waiver.
II
9
This Court has had prior occasion to consider § 94. It is now settled that the statute's provision concerning venue in state courts, despite the presence of what might be regarded as permissive language, "is not permissive, but mandatory, and, therefore, 'that national banks may be sued only in those state courts in the county where the banks are located.' "4 National Bank v. Associates of Obstetrics, 425 U.S. 460, 461, 96 S.Ct. 1632, 1633, 48 L.Ed.2d 92 (1976), quoting Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 561, 83 S.Ct. 520, 523, 9 L.Ed.2d 523 (1963). See Radzanower v. Touche Ross & Co., 426 U.S. 148, 152, 96 S.Ct. 1989, 1992, 48 L.Ed.2d 540 (1976); Cope v. Anderson, 331 U.S. 461, 467, 67 S.Ct. 1340, 1343, 91 L.Ed. 1602 (1947). The venue provision, however, has been held to be a privilege personal to the bank, and to be subject to waiver. Charlotte Nat. Bank v. Morgan, 132 U.S. 141, 145, 10 S.Ct. 37, 38, 33 L.Ed. 282 (1889); Mercantile Nat. Bank v. Langdeau, 371 U.S., at 561, and n. 12, 83 S.Ct., at 523.
10
In our view, this language of command does not in itself equate the statute's word "located" with the county designated in the bank's organization certificate and in its formal charter. Petitioner insists that the Court's reference in Langdeau to the effect that a ruling that would recognize state jurisdictional and venue requirements "would render altogether meaningless a congressional enactment permitting suit to be brought in the bank's home county," id., at 560, 83 S.Ct., at 523, "implicitly entails the conclusion that a national bank cannot also be sued in any county wherein it operates branch banks." Brief for Petitioner 17. This, however, overstates the language and holding in Langdeau, a case that did not concern authorized branch banking at all. Langdeau is only the starting point, not the conclusion, for the resolution of the present case.5
III
11
A. The lower federal courts appear to be unanimous in holding that a national bank, under § 94, is "established" only in the federal district that encompasses the place specified in the bank's charter. E. g., Leonardi v. Chase Nat. Bank, 81 F.2d 19, 21-22 (CA2), cert. denied, 298 U.S. 677, 56 S.Ct. 941, 80 L.Ed. 1398 (1936); Northside Iron & Metal Co. v. Dobson & Johnson, Inc., 480 F.2d 798, 799-800 (CA5 1973). See 7A Michie, Banks and Banking, ch. 15, § 220a(4) (1973 ed.); 1 J. Moore, J. Lucas, H. Fink, D. Wecksteen, & J. Wicker, Moore's Federal Practice ¶ 0.144[2.-1] (1977). This rule, however, is not without its scholarly criticism. See Steinberg, Waiver of Venue under the National Bank Act: Preferential Treatment for National Banks, 62 Iowa L.Rev. 129 (1976); Comment, Restricted Venue in Suits Against National Banks: A Procedural Anachronism, 15 Wm. & Mary L.Rev. 179 (1973); Note, An Assault on the Venue Sanctuary of National Banks, 34 Geo.Wash.L.Rev. 765 (1966); ALI, Study of the Division of Jurisdiction Between State and Federal Courts 77, 412-413 (1969). See also Ronson Corp. v. Liquifin Aktiengesellschaft, 483 F.2d 852, 855 (CA3 1973).
12
We are not concerned in the present case, however, with this federal aspect of venue, and we have no occasion here to review these rulings.
13
B. We note in the decided state cases no less than three diverse interpretations of § 94: 1. Several rulings consider the words "established" and "located" to be functionally synonymous. Absent waiver, these cases restrict a state-court action against a national bank to the place designated in the bank's charter. E. g., Ebeling v. Continental Illinois Nat. Bank & Trust Co., 272 Cal.App.2d 724, 726-727, 77 Cal.Rptr. 612, 614 (1969); Gregor J. Schaefer Sons, Inc. v. Watson, 26 A.D.2d 659, 272 N.Y.S.2d 790, 791 (1966); Prince v. Franklin Nat. Bank, 62 Misc.2d 855, 310 N.Y.S.2d 390, 391 (Sup.Ct.1970). See 7A Michie, Banks and Banking, ch. 15, § 220b (1973 ed.).6
14
2. In contrast, other decisions hold that "established" and "located" are not synonymous. For state-court purposes, it is said, a bank may be "located" in any place where it operates and maintains a branch doing general banking business, even though, for federal-court purposes, it is "established" only at the place specified in its charter. E. g., Security Mills, of Asheville, Inc. v. Wachovia Bank & Trust Co., 281 N.C. 525, 532, 189 S.E.2d 266, 271 (1972); Holson v. Gosnell, 264 S.C. 619, 623, 216 S.E.2d 539, 541 (1975), cert. denied, 423 U.S. 1048, 96 S.Ct. 774, 46 L.Ed.2d 636 (1976); Central Bank v. Superior Court, 30 Cal.App.3d 962, 971, 106 Cal.Rptr. 912, 918 (1973). The Georgia Court of Appeals in the present litigation so interpreted § 94. 138 Ga.App., at 709, 227 S.E.2d at 436.
15
3. Still other courts conclude that by establishing a branch in a county other than that designated in its charter, a national bank presumptively waives any venue restriction of § 94, at least as to a suit arising out of banking activity at that branch. Lapinsohn v. Lewis Charles, Inc., 212 Pa.Super. 185, 193-195, 240 A.2d 90, 94-95, cert. denied sub nom. First Camden Nat. Bank & Trust Co. v. Lapinsohn, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968); Security Mills of Asheville, Inc. v. Wachovia Bank & Trust Co., supra (alternative ground). See Vann v. First Nat. Bank, 324 So.2d 94, 95 (Fla.App.1975), and Exchange Nat. Bank v. Rotocast Plastics Products, Inc., 341 So.2d 787, 789 (Fla.App.1977).
16
These inconsistent approaches cannot all be appropriately interpretive of § 94. We therefore look to the legislative history to see what light it may afford.
IV
17
This Court reviewed that history, so far as it concerned the state-court venue provision, in Mercantile Nat. Bank v. Langdeau, 371 U.S., at 558-562, 83 S.Ct., at 522-524. There the Court noted: (a) "Unquestionably Congress had authority to prescribe the manner and circumstances under which [national] banks could sue or be sued in the courts," id., at 559, 83 S.Ct., at 522. (b) The "roots" of the venue problem "reach back to" the National Bank Act of 1863, 12 Stat. 665. 371 U.S., at 558, 83 S.Ct., at 522. (c) Section 59 of the 1863 Act, 12 Stat. 681, spoke only of suits in a federal court "within the district in which the association was established" and made no mention of suits in state courts, 371 U.S., at 559, 83 S.Ct., at 522. (d) The 1863 Act was replaced shortly by the National Bank Act of 1864, 13 Stat. 99, ch. 106, which, in its § 57, "carried forward the former § 59 and also added" the provision that " 'suits . . . may be had . . . in any state, county, or municipal court in the county or city in which said association is located, having jurisdiction in similar cases,' " 371 U.S., at 560, 83 S.Ct., at 523. (e) "Congress intended that in those courts alone could a national bank be sued against its will," ibid. (f) Although § 57 was omitted from Title 62 (National Banks) of the Revised Statutes of 1873, Title 13 (the Judiciary) contained provisions, § 563 Fifteenth, "granting the federal courts jurisdiction over suits by and against national banks brought in the district of their residence," 371 U.S., at 560, 83 S.Ct., at 523. And (g) the Act of February 18, 1875, ch. 80, 18 Stat., pt. 3, p. 320, added to § 5198 of the Revised Statutes of 1873 "provisions substantially identical to § 57 of the 1864 Act,"7 and thus, "for a second time Congress specified the precise federal and state courts in which suits against national banks could be brought," 371 U.S., at 560-561, 83 S.Ct., at 523.
18
The conclusions drawn by the Court from Langdeau's review of the history of § 94's state-court venue provision were the obvious ones already noted: "[N]ational banks may be sued only in those state courts in the county where the banks are located," 371 U.S., at 561, 83 S.Ct., at 523, and "the statute must be given a mandatory reading," id., at 562, 83 S.Ct., at 524. This is not to say, however—and the Court in Langdeau did not say—that § 94's pivotal word "located," in a branch banking context, would mean and be restricted to the place designated in the bank's charter. What the Court in Langdeau specifically held was that § 94 prevailed, on a plea of privilege, over a state venue statute that would have permitted suit in an outside county where a receivership proceeding for an allegedly defrauded insurance company was pending. Langdeau in no way hampers our consideration of the branch banking problem.
19
There can be little question, as petitioner argues, Brief for Petitioner 14, that at the time the 1864 Act was passed, the activities of a national bank were restricted to one particular location. That Act's provisions to the effect that the organization certificate (as 12 U.S.C. § 22 also requires today) shall specifically state "the particular county and city, town, or village" of its place of operations, 13 Stat. 101, and that the bank's "usual business shall be transacted at an office or banking house located in the place specified in its organization certificate," 13 Stat. 102 (cf. 12 U.S.C. § 81), indicated as much. National Banks (other, perhaps, than those that originally were state banks with existing branches) were not permitted to engage in branch banking until 1927, when the McFadden Act, 44 Stat., pt. 2, p. 1224, was passed; moreover, the McFadden Act allowed national banks to "establish" branches only if permitted by state law, and only "within the limits of the city, town, or village in which said association is situated," id., at 1228. It was not until 1933 that Congress approved, upon specified conditions, national bank branches beyond the place named in the charter. 48 Stat. 189-190.
20
Petitioner argues that since a national bank in 1864 was permitted only one "location," namely, that specified in the charter, "there is no statutory basis for interpreting the word 'located' as having multi-county reference." Brief for Petitioner 15. It says that one may not presume "that the Congress anticipated by some sixty years the advent of multi-county branch banking and formulated its statutory language accordingly." Ibid.
21
We need not travel that far analytically in determining congressional intent. It suffices to stress that Congress did not contemplate today's national banking system, replete with branches, when it formulated the 1864 Act; that there are no sure indicators of 1864 congressional intent with respect to a banking system that did not then exist; and that prior to 1927, and, indeed, prior to 1933, Congress had no occasion whatsoever to be concerned with state-court venue other than at the place designated in the bank's charter.8 Throughout this early period, the words "established" and "located" led to the same ultimate venue result.
22
Nevertheless, the two words are different. One must concede that a federal judicial district, which the statute associates with the word "established," is not the same as the geographical area that delineates the jurisdiction of a state court, which the statute associates with "located." Whatever the reason behind the distinction in the words, it does exist, and we recognize it. In fact, in Langdeau, the Court did not coalesce the two terms but said that "national banks may be sued only in those state courts in the county where the banks are located," 371 U.S., at 561, 83 S.Ct., at 523.
23
There is no enduring rigidity about the word "located." What Congress was concerned with was the untoward interruption of a national bank's business that might result from compelled production of bank records for distant litigation. Charlotte Nat. Bank v. Morgan, 132 U.S., at 145, 10 S.Ct., at 38; Mercantile Nat. Bank v. Langdeau, 371 U.S., at 561-562, n. 12, 83 S.Ct., at 524. That concern largely evaporates when the venue of a state-court suit coincides with the location of an authorized branch.9 It is also diminished by improvements in data processing and transportation.10
V
24
Finally, we do not share petitioner's proposition that, for still another reason, the words "established" and "located," although different, may not have dichotomous meanings. Petitioner notes the appearance of "any" and "the" in § 94, and argues that the former suggests a potential plurality, whereas the definite article modifies nouns that are singular and denote a unique geographical status. Petitioner then asserts that from this grammatical construction of the statute it may be concluded that if Congress had intended a plurality of places where a national bank could be located, it would have substituted "any" for "the," or at least would have employed plural nouns rather than singular ones.
25
This dissection of the face of the statute is possible argumentation. But petitioner does not proffer it as anything more than that. It is certainly not persuasive in itself, and our experience with the inexactitude of congressional language, an inexactitude that perhaps often is inevitable—see, for example, Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Chemehuevi Tribe of Indians v. FPC, 420 U.S. 395, 95 S.Ct. 1066, 43 L.Ed.2d 279 (1975)—does not convince us that much weight can be attached to the use of "any" and "the," respectively, in § 94.
26
The judgment of the Court of Appeals of the State of Georgia is
27
Affirmed.
28
Mr. Justice STEWART, concurring.
29
The Court's opinion, despite its disclaimer, may be read by some to imply approval of the view that, for purposes of federal-court venue under 12 U.S.C. § 94, a national bank is "established" only in the district that includes its charter county. See ante, at 39-41, 44, 45. I have serious doubt that the cases so holding were correctly decided,* and in any event this question remains an open one here.
30
Today we decide only that for purposes of state-court venue under § 94 a national bank is "located" in any county in which it has a branch bank. There is no need in this case to consider the meaning of the word "established" in § 94, or to draw any contrast between the words "established" and "located." It is upon this understanding that I join the opinion of the Court.
1
The word "located" appears in at least two other federal statutes concerning national banks:
Title 28 U.S.C. § 1394 provides:
"Any civil action by a national banking association to enjoin the Comptroller of the Currency, under the provisions of any Act of Congress relating to such associations, may be prosecuted in the judicial district where such association is located."
And 28 U.S.C. § 1348 reads:
"The district courts shall have original jurisdiction of any civil action commenced by the United States, or by direction of any officer thereof, against any national banking association, any civil action to wind up the affairs of any such association, and any action by a banking association established in the district for which the court is held, under chapter 2 of Title 12, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by such chapter.
"All national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the States in which they are respectively located."
See First Nat. Bank v. Williams, 252 U.S. 504, 40 S.Ct. 372, 64 L.Ed. 690 (1920), and Herrmann v. Edwards, 238 U.S. 107, 35 S.Ct. 839, 59 L.Ed. 1224 (1915), for comments upon the history of these respective statutes.
2
Title 12 U.S.C. § 22 reads in part:
"The persons uniting to form such an association shall, under their hands, make an organization certificate, which shall specifically state:
* * * * *
"Second. The place where its operations of discount and deposit are to be carried on, designating the State, Territory, or District, and the particular county and city, town, or village."
3
The Supreme Court of Georgia, with one justice dissenting, denied certiorari. App. to Pet. for Cert. A8. Petitioner's motion for reconsideration was also denied, with two justices dissenting. Id., at A9.
4
The Court long ago perceived a "local-action exception" to this rule. Casey v. Adams, 102 U.S. 66, 67-68, 26 L.Ed. 52 (1880). See National Bank v. Associates of Obstetrics, 425 U.S. 460, 461-462, 96 S.Ct. 1632, 1633, 48 L.Ed.2d 92 (1976); Michigan Nat. Bank v. Robertson, 372 U.S. 591, 593, 83 S.Ct. 914, 915, 9 L.Ed.2d 961 (1963). The exception, however, as Casey v. Adams itself acknowledges, 102 U.S., at 67, 26 L.Ed. 52, does not apply to an ordinary transitory action. See Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 561 n. 11, 83 S.Ct. 520, 523, 9 L.Ed.2d 523 (1963).
5
At oral argument petitioner acknowledged that Langdeau "is not determinative of the issue." Tr. of Oral Arg. 15.
6
In a number of federal cases the words "established" and "located" have been regarded as essentially the same. E. g., Leonardi v. Chase Nat. Bank, 81 F.2d 19, 21-22 (CA2), cert. denied, 298 U.S. 677, 56 S.Ct. 941, 80 L.Ed 1398 (1936); Northside Iron & Metal Co. v. Dobson & Johnson, Inc., 480 F.2d 798, 799 (CA5 1973); Fisher v. First Nat. Bank, 538 F.2d 1284, 1286-1287 (CA7 1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 778 (1977); United States Nat. Bank v. Hill, 434 F.2d 1019, 1020 (CA9 1970). See 7A Michie, Banks and Banking, ch. 15, § 220a(4) (1973 ed.). These cases, however, necessarily were concerned with the word "established" and not with "located." None dealt with the issue of venue of a state-court suit against a national bank in a county in which the bank was operating only a branch.
7
The addition was:
"That suits, actions, and proceedings against any association under this title may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases." See Third Nat. Bank v. Impac, Ltd., 432 U.S. 312, 316-318, 97 S.Ct. 2307, 2310-11, 53 L.Ed.2d 368 (1977); id., at 325-327, 97 S.Ct. 2315-2316 (dissenting opinion).
8
Petitioner argues that the failure of Congress to change § 94 when it approved branch banking demonstrates a congressional intent to restrict venue to the charter county. Brief for Petitioner 15-16, n. 28. We do not find this argument persuasive; petitioner offers nothing to the effect that Congress even considered venue when it authorized branch banking in 1927 and 1933.
9
One may argue, of course, that the concern also should evaporate with respect to a federal suit at the place of the branch. That issue is not before us. In any event, as has been stated above, we have no occasion here to disturb the consistent authority relating to federal venue.
10
This interpretation of § 94 will not inconvenience the bank or unfairly burden it with distant litigation in violation of any congressional policy. We recognize that Congress adopts venue provisions in part for the convenience of the parties. See Olberding v. Illinois Central R. Co., 346 U.S. 338, 340, 74 S.Ct. 83, 85, 98 L.Ed. 39 (1953) (interpreting 28 U.S.C. § 1391(a)). Litigation of this dispute in De Kalb County inconveniences no one to any real degree. Respondent chose to file his suit there. Petitioner has established a permanent business there, taking advantage of the commerce of the community. Its attorneys have their offices in adjoining Fulton County, part of the Atlanta metropolitan area. Litigation in De Kalb County cannot be more inconvenient than litigation in Chatham County, the place of chartering, some 200 miles away.
*
The first case to decide the question, Leonardi v. Chase Nat. Bank, 81 F.2d 19 (CA2), relied primarily on a First Circuit decision holding that a national bank chartered in New York was not "located" in Puerto Rico, where it operated a branch bank for purposes of taxation of the bank's shares, National City Bank v. Domenech, 71 F.2d 13, and on the general provision for corporate venue which at that time limited venue to the district of incorporation. See 1 Moore's Federal Practice ¶ 0.141[4], p. 1352 (2d ed. 1977). Neither analogy compelled the Second Circuit's conclusion. Subsequent cases have not amplified Leonardi's reasoning. See United States Nat. Bank v. Hill, 434 F.2d 1019 (CA9), and cases cited therein.
| 89
|
434 U.S. 47
98 S.Ct. 95
54 L.Ed.2d 228
Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Appellant,v.John A. JOBST.
No. 76-860.
Argued Oct. 4, 1977.
Decided Nov. 8, 1977.
Syllabus
Provisions of the Social Security Act specifying that secondary benefits under the Act received by a disabled dependent child of a covered wage earner shall terminate when the child marries an individual who is not entitled to benefits under the Act, even though that individual is permanently disabled, held not to violate the principle of equality embodied in the Due Process Clause of the Fifth Amendment. Pp. 50-58.
(a) The general rule that entitlement to a child's statutory benefits terminates upon marriage is rational. Congress, in lieu of requiring individualized proof of dependency on a case-by-case basis, could assume that marital status is a relevant test of probable dependency, a married person being less likely than an unmarried person to be dependent on his parents for support. Pp. 52-54.
(b) The exception provided for disabled children who marry individuals entitled to benefits under the Act to the general rule that marriage terminates a child's statutory benefits is likewise rational. That exception, which is a reliable indicator of probable hardship, requires no individualized inquiry into degrees of need or periodic review to determine continued entitlement. Moreover, Congress could reasonably take one step to eliminate hardship caused by the general-marriage rule without at the same time accomplishing its entire objective. Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563. Pp. 54-58.
368 F.Supp. 909, reversed.
Stephen L. Urbanczyk, Dept. of Justice, Washington D.C., for appellant, pro hac vice, by special leave of Court. With him on brief were Sol. Gen. Wade Hampton McCree, Jr., Asst. Attys. Gen. Barbara A. Babock, and William Ranter.
Jerome D. Riffel, Kansas City, Mo., for appellee.
Mr. Justice STEVENS delivered the opinion of the Court.
1
The question presented is whether Congress has the power to require that a dependent child's social security benefits terminate upon marriage even though his spouse is permanently disabled. Answering that question in the negative, the District Court held that 42 U.S.C. §§ 402(d)(1)(D) and 402(d)(5) deprive appellee of property without due process of law. Jobst v. Richardson, 368 F.Supp. 909. We reverse.
2
Mr. Jobst has been disabled by cerebral palsy since his birth in 1932. He qualified for child's insurance benefits in 1957, several months after his father died. In 1970 he married another cerebral palsy victim. Since his wife was not entitled to benefits under the federal Act,1 the statute required the Secretary to terminate his benefits.2
3
Mr. Jobst brought this suit to review the Secretary's action.3 The District Court held that the statute violated the equality principle applicable to the Federal Government by virtue of the Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 because all child's insurance beneficiaries are not treated alike when they marry disabled persons. Beneficiaries who marry other social security beneficiaries continue to receive benefits whereas those who marry nonbeneficiaries lose their benefits permanently. The court held this distinction irrational. 368 F.Supp., at 913.
4
The Secretary appealed directly to this Court. 28 U.S.C. § 1252. Noting that Mr. Jobst and his wife had become entitled to benefits under a newly enacted statute authorizing supplemental security income for the aged, blind, and disabled,4 this Court remanded the case for reconsideration in the light of that program. Weinberger v. Jobst, 419 U.S. 811, 95 S.Ct. 26, 42 L.Ed.2d 38. The District Court reviewed the new program, concluded that it had no relevance to the issues presented by this case, and reinstated its original judgment. The Secretary again appealed, and we noted probable jurisdiction. 429 U.S. 1089, 97 S.Ct. 1096, 51 L.Ed.2d 534.
5
Although the District Court focused on the statutory consequences of a marriage between two disabled persons, the Secretary argues that the relevant statutory classification is much broader. We therefore first describe the statutory scheme, then consider the validity of a general requirement that benefits payable to a wage earner's dependent terminate upon marriage, and finally decide whether such a general requirement is invalidated by an exception limited to marriages between persons who are both receiving benefits.
6
* As originally enacted in 1935, the Social Security Act authorized a monthly benefit for qualified wage earners at least 65 years old and a death benefit payable to the estate of a wage earner who died at an earlier age. 49 Stat. 622-624. In 1939 Congress created secondary benefits for wives, children, widows, and parents of wage earners. See 53 Stat. 1362, 1364-1366. The benefits were intended to provide persons dependent on the wage earner with protection against the economic hardship occasioned by loss of the wage earner's support. Mathews v. De Castro, 429 U.S. 181, 185-186, 97 S.Ct. 431, 434-435, 50 L.Ed.2d 389. Generally speaking, therefore, the categories of secondary beneficiaries were defined to include persons who were presumed to be dependent on the wage earner at the time of his death, disability, or retirement.
7
Specifically, the child's benefit as authorized in 1939 was available only to a child who was unmarried, under 18 and dependent upon the wage earner at the time of his death or retirement. 53 Stat. 1364. Since Mr. Jobst was 23 at the time of his father's death, he would not have been eligible for a child's benefit under the 1939 Act. Under that statute, the child's benefit, like the benefits for widows and parents, terminated upon marriage. 53 Stat. 1364-1366.
8
In 1956, Congress enlarged the class of persons entitled to a child's benefit to include those who, like Mr. Jobst, were under a disability which began before age 18.5 For such a person the benefit continued beyond the age of 18 but, as with other secondary benefits, it terminated upon marriage.
9
In 1958, Congress adopted the amendment that created the basis for Mr. Jobst's constitutional attack. The amendment provided that marriage would not terminate a child's disability benefit if the child married a person who was also entitled to benefits under the Act. See 72 Stat. 1030-1031. A similar dispensation was granted to widows, widowers, divorced wives, and parents.6 In each case the secondary benefit survives a marriage to another beneficiary, but any other marriage—even to a disabled person unable to provide the beneficiary with support—is a terminating event unaffected by the 1958 amendment.
10
It was the failure of Congress in 1958 to create a larger class of marriages that do not terminate the child's benefit for disabled persons that the District Court found irrational.
II
11
The provision challenged in this case is part of a complex statutory scheme designed to administer a trust fund financed, in large part, by taxes levied on the wage earners who are the primary beneficiaries of the fund. The entitlement of any secondary beneficiary is predicated on his or her relationship to a contributing wage earner. If the statutory requirements for eligibility are met, the amount of the benefit is unrelated to the actual need of the beneficiary. See, e. g., Mathews v. De Castro, 429 U.S., at 185-186, 97 S.Ct., at 434-435, 50 L.Ed.2d 389. The statute is designed to provide the wage earner and the dependent members of his family with protection against the hardship occasioned by his loss of earnings; it is not simply a welfare program generally benefiting needy persons. Califano v. Goldfarb, 430 U.S. 199, 213-214, 97 S.Ct. 1021, 1030, 51 L.Ed.2d 270 (opinion of Brennan, J.).
12
Nor has Congress made actual dependency on the wage earner either a sufficient or a necessary condition of eligibility in every case.7 Instead of requiring individualized proof on a case-by-case basis, Congress has elected to use simple criteria, such as age and marital status, to determine probable dependency.8 A child who is married or over 18 and neither disabled nor a student is denied benefits because Congress has assumed that such a child is not normally dependent on his parents. There is no question about the power of Congress to legislate on the basis of such factual assumptions. General rules are essential if a fund of this magnitude is to be administered with a modicum of efficiency, even though such rules inevitably produce seemingly arbitrary consequences in some individual cases. Weinberger v. Salfi, 422 U.S. 749, 776, 95 S.Ct. 2457, 2472, 45 L.Ed.2d 522.
13
Of course, a general rule may not define the benefited class by reference to a distinction which irrationally differentiates between identically situated persons. Differences in race, religion, or political affiliation could not rationally justify a difference in eligibility for social security benefits, for such differences are totally irrelevant to the question whether one person is economically dependent on another. But a distinction between married persons and unmarried persons is of a different character.
14
Both tradition and common experience support the conclusion that marriage is an event which normally marks an important change in economic status. Traditionally, the event not only creates a new family with attendant new responsibilities, but also modifies the pre-existing relationships between the bride and groom and their respective families. Frequently, of course, financial independence and marriage do not go hand in hand. Nevertheless, there can be no question about the validity of the assumption that a married person is less likely to be dependent on his parents for support than one who is unmarried.
15
Since it was rational for Congress to assume that marital status is a relevant test of probable dependency, the general rule which obtained before 1958, terminating all child's benefits when the beneficiary married, satisfied the constitutional test normally applied in cases like this. See Mathews v. De Castro, 429 U.S., at 185, 97 S.Ct., at 434, 50 L.Ed.2d 389; Weinberger v. Salfi, and cases cited at 768-770, 95 S.Ct. at 2468-2469. That general rule is not rendered invalid simply because some persons who might otherwise have married were deterred by the rule or because some who did marry were burdened thereby.9 For the marriage rule cannot be criticized as merely an unthinking response to stereotyped generalizations about a traditionally disadvantaged group,10 or as an attempt to interfere with the individual's freedom to make a decision as important as marriage.11
16
The general rule, terminating upon marriage the benefits payable to a secondary beneficiary, is unquestionably valid.
III
17
The question that remains is whether the 1958 amendment invalidates this general rule by carving out an exception for marriages between beneficiaries.
18
The exception does create a statutory classification, but it is not as narrow as that described by the District Court. The District Court identified the relevant classification as one distinguishing between (1) the marriage of a disabled beneficiary to another disabled person who is receiving social security benefits and (2) the marriage of a disabled beneficiary to another disabled person who is not receiving benefits. It is true that persons in the former category are treated more favorably than those in the latter category. It is also true that persons in the latter category may have as great a need for benefits as those in the former category. But it is not correct to conclude, as the District Court did, that only disabled persons are affected by the exception, or that the legislative classification is wholly irrational.
19
Both the class of persons favored by the 1958 Amendment and the class which remains subject to the burdens of the general marriage rule include persons who are not disabled.12 The broad legislative classification must be judged by reference to characteristics typical of the affected classes rather than by focusing on selected, atypical examples. When so judged, both the exception and its limits are valid.
20
The 1958 amendment reflects a legislative judgment that a marriage between two persons receiving benefits will not normally provide either spouse with protection against the economic hardship that would be occasioned by the termination of benefits. The Secretary submits, and we agree, that it was reasonable for Congress to ameliorate the severity of the earlier rule by protecting both spouses from the dual hardship which it effected.13
21
Mr. Jobst argues, however, that the reason for the amendment applies equally to his situation. He urges that his hardship is just as great as that which the amendment avoids when one beneficiary marries another, because his spouse is also disabled. He therefore attacks the exception as irrationally underinclusive.14 We are persuaded, however, that, even if the benign purpose of the 1958 amendment encompasses this case,15 legitimate reasons justify the limits that Congress placed on it. See Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231. The exception, like the general rule itself, is simple to administer. It requires no individualized inquiry into degrees of hardship or need.16 It avoids any necessity for periodic review of the beneficiaries' continued entitlement. In the cases to which the exception does apply, it is a reliable indicator of probable hardship. Since the test is one that may be applied without introducing any new concepts into the administration of the trust fund,17 Congress could reasonably take one firm step toward the goal of eliminating the hardship caused by the general marriage rule without accomplishing its entire objective in the same piece of legislation. Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. Even if it might have been wiser to take a larger step, the step Congress did take was in the right direction and had no adverse impact on persons like the Jobsts.
22
It is true, as Mr. Jobst urges, that the limited exception may have an impact on a secondary beneficiary's desire to marry, and may make some suitors less welcome than others. But unless Congress should entirely repudiate marriage as a terminating event, that criticism will apply to any limited exception to the general rule. No one suggests that Congress was motivated by antagonism toward any class of marriages or marriage partners not encompassed by the exception. Congress' purpose was simply to remedy the particular injustice that occurred when two dependent individuals married and simultaneously lost their benefits.
23
We are satisfied that both the general rule and the 1958 exception are legitimate exercises of Congress' power to decide who will share in the benefits of the trust fund. The favored treatment of marriages between secondary beneficiaries does not violate the principle of equality embodied in the Due Process Clause of the Fifth Amendment.
24
The judgment is reversed.
25
It is so ordered.
1
Mrs. Jobst was receiving welfare assistance from the Division of Welfare of the State of Missouri, but was not receiving any social security benefits under 42 U.S.C. §§ 401-432 (1970 ed. and Supp. V).
2
Section 202 of the Social Security Act, 49 Stat. 623, as amended, 42 U.S.C. § 402 (1970 ed. and Supp. V), provides in pertinent part:
"(d)(1) Every child (as defined in section 416(e) of this title) of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, if such child—
"(A) has filed application for child's insurance benefits,
"(B) at the time such application was filed was unmarried and (i) either had not attained the age of 18 or was a full-time student and had not attained the age of 22, or (ii) is under a disability (as defined in section 423(d) of this title) which began before he attained the age of 22, and
"(C) was dependent upon such individual—
* * * * *
"shall be entitled to a child's insurance benefit for each month, beginning with the first month after August 1950 in which such child becomes so entitled to such insurance benefits and ending with the month preceding whichever of the following first occurs—
"(D) the month in which such child dies or marries,
* * * * *
"(5) In the case of a child who has attained the age of eighteen and who marries—
"(A) an individual entitled to benefits under subsection (a), (b), (e), (f), (g), or (h) of this section or under section 423(a) of this title, or
"(B) another individual who has attained the age of eighteen and is entitled to benefits under this subsection,
"such child's entitlement to benefits under this subsection shall, notwithstanding the provisions of paragraph (1) of this subsection but subject to subsection (s) of this section, not be terminated by reason of such marriage . . . .
* * * * *
"(s)(2) . . . [S]o much of subsectio[n] . . . (d)(5) . . . of this section as precedes the semicolon, shall not apply in the case of any child unless such child, at the time of the marriage referred to therein, was under a disability . . . ."
3
Mr. Jobst first exhausted his administrative remedies. A hearing examiner found in his favor, ruling that the denial of benefits was unconstitutional. The Appeals Council reversed; it held that an administrative agency has no power to rule on the constitutionality of the Act it administers.
4
See Title XVI of the Social Security Act, as amended by the Social Security Amendments of 1972, 86 Stat. 1465, 42 U.S.C. § 1381 et seq. (1970 ed., Supp. V).
5
The 1956 amendment replaced the requirement that the child be under 18 at the time of application with a requirement that he be either under 18 or "under a disability . . . which began before he attained the age of eighteen . . . ." 70 Stat. 807. In 1972, Congress raised the age before which the child's disability must begin from 18 to 22. 86 Stat. 1343-1345.
6
72 Stat. 1030-1032. The House Report explained the purpose of this change:
"When a secondary beneficiary marries, such person's benefit is terminated under present law. If he marries a person who is or who will become entitled to an old-age insurance benefit, he may qualify for a new benefit based on the earnings of the new spouse. But if the new spouse is also receiving a secondary benefit, the benefits of both are terminated and ordinarily neither beneficiary can become entitled to any new benefits. [Your committee's bill] would eliminate the hardship in these cases by providing that marriage would not terminate a benefit where a person receiving mother's, widow's, widower's, parent's, or childhood disability benefits marries a person receiving any of these benefits or where a person receiving mother's or childhood disability benefits marries a person entitled to old-age or disability insurance benefits." H.R.Rep. No. 2288, 85th Cong., 2d Sess., 18 (1958), U.S.Code Cong. & Admin.News 1958, pp. 4218, 4233.
7
No doubt there are many distant relatives and unrelated persons who do not qualify for benefits even though they are actually dependent on a wage earner. Similarly, some married children and some 19-year-old children remain dependent on their parents because they are unable to support themselves while their younger brothers and sisters may be self-sufficient.
8
The idea that marriage changes dependency is expressed throughout the Social Security Act. Most secondary beneficiaries are eligible only if they have not married or remarried. See 42 U.S.C. § 402(b)(1)(C) (divorced wives); § 402(e)(1)(A) (widows); § 402(f)(1)(A) (widowers); § 402(g)(1)(A) (surviving or divorced mothers); § 402(h)(1)(C) (parents). With some limited exceptions, §§ 402(e)(4) and (f)(5), marriage or remarriage marks the end of secondary benefits. §§ 402(b)(1)(H) (1970 ed., Supp. V), 402(e)(1), 402(f)(1), 402(g)(1), and 402(h)(1). In each case, however, Congress has excepted marriages to some social security beneficiaries. §§ 402(b)(3), 402(e)(3), 402(f)(4), 402(g)(3), and 402(h)(4).
9
This proposition is not questioned by appellee. "As a general premise the Secretary undoubtedly correctly concludes it is reasonable to terminate social security payments to child beneficiaries in the event of marriage." Brief for Appellee 21.
10
See Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514; Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010.
11
See Whalen v. Roe, 429 U.S. 589, 599-600, 603, 97 S.Ct. 869, 876-877, 878, 51 L.Ed.2d 64. Congress adopted this rule in the course of constructing a complex social welfare system that necessarily deals with the intimacies of family life. This is not a case in which government seeks to foist orthodoxy on the unwilling by banning, or criminally prosecuting nonconforming marriages. See Loving v. Virginia, supra. Congress has simply recognized that marriage traditionally brings changed responsibilities.
12
As we have seen, the burden of the general marriage rule is not limited to disabled beneficiaries; children, widowers, widows, divorced wives, and parents—all are affected by the rule. And although the District Court singled out for analysis marriages to disabled nonbeneficiaries, Congress did not; Mr. Jobst would also have lost his benefits if he had married an able-bodied woman who was not receiving social security benefits. Finally, the protection extended by the 1958 amendment encompasses many more persons than those described by the District Court. Like the marriage rule itself, the amendment affects widows, widowers, parents, and divorced wives, as well as disabled children. See n. 8, supra.
13
The fact that marriage characteristically signifies the end of a child's dependency on parental support justifies a general rule terminating benefits when a child marries. The fact that a marriage between two spouses who are both receiving dependents' benefits does not characteristically signify a similar change in economic status justifies the exception. In other words, since the justifying characteristic of the general class does not apply to the excepted class, the exception rests on a reasonable predicate. This is true even though some members of each class may possess the characteristic more commonly found in the other class.
14
Even if we were to sustain his attack, and even though we recognize the unusual hardship that the general rule has inflicted upon him, it would not necessarily follow that Mr. Jobst is entitled to benefits. Cf. Stanton v. Stanton, 421 U.S. 7, 17-18, 95 S.Ct. 1373, 1379, 43 L.Ed.2d 688; Stanton v. Stanton, 429 U.S. 501, 97 S.Ct. 717, 50 L.Ed.2d 723. For the vice in the statute stems from the exception created by the 1958 amendment; that vice could be cured either by invalidating the entire exception or by enlarging it. Since the choice involves legislation having a nation-wide impact, the equities of Mr. Jobst's case would not control. See Developments in the Law—Equal Protection, 82 Harv.L.Rev. 1065, 1136-1137 (1969). If we were to enlarge the exception, it would be necessary to fashion some new test of need, dependency, or disability. Although the District Court only granted relief for persons marrying a "totally disabled" spouse, its rationale would equally apply to any marriage of a secondary beneficiary to a needy nonbeneficiary.
15
We note, however, that Congress could have rationally concluded that beneficiaries who marry other beneficiaries present a more compelling case for legislative relief than beneficiaries who marry needy nonbeneficiaries. Secondary beneficiaries who marry each other lose two sets of benefits and thus may suffer a greater loss than does a couple that sacrifices only one set of benefits.
16
In the very Act that created the exception for marriages between beneficiaries, Congress showed its reluctance to use individualized determinations in allocating social security benefits. The 1958 amendments abolished a requirement that disabled children over 18 prove their individual dependency on the wage earner to qualify for benefits. Pub.L. 85-840 § 306, 72 Stat. 1030. Congress concluded that these beneficiaries should be "deemed dependent" because "the older child who has been totally disabled since before age 18 is also likely to be dependent on his parent." H.R.Rep. No. 2288, 85th Cong., 2d Sess., 17 (1958).
17
A logical application of Mr. Jobst's position would permit the Secretary to end benefits only after an individual determination of disability or need. Congress, however, has sought to make social security payments independent of individual need, while establishing a separate program to serve those who are needy but ineligible for social security benefits. The Supplemental Security Income Program is a federally funded welfare program administered through the Social Security Administration. Its purpose is plainly stated by H.R.Rep. No. 92-231, p. 147 (1971): "[S]ome people who because of age, disability, or blindness are not able to support themselves through work may receive relatively small social security benefits. Contributory social insurance, therefore, must be complemented by an effective assistance program."
Mr. and Mrs. Jobst became eligible for the Supplemental Security Income program as soon as it was instituted. On remand the parties stipulated that, based on the couple's need, they were receiving monthly payments only $20 less than the amount they would have been receiving if Mr. Jobst's child's benefits had been restored.
| 12
|
434 U.S. 59
98 S.Ct. 280
54 L.Ed.2d 238
John W. KEY et al., Appellants,v.Michael M. DOYLE et al.
No. 76-1057.
Argued Oct. 5, 1977.
Decided Nov. 14, 1977.
Rehearing Denied Jan. 9, 1978.
See 434 U.S. 1025, 54 L.Ed.2d 753.
Syllabus
A law applicable only in the District of Columbia is not a "statute of the United States" for purposes of 28 U.S.C. § 1257(1) which provides for this Court's appellate review of final judgments rendered by a State's highest court in which a decision could be had where the validity of a statute of the United States is at issue and the decision is against its validity. Consequently, a decision by the District of Columbia Court of Appeals holding unconstitutional a provision of the District of Columbia Code is not reviewable by direct appeal to this Court but only by writ of certiorari pursuant to § 1257(3). Pp. 61-68.
Appeal dismissed; see D.C.App., 365 A.2d 621.
Floyd Willis, III, Rockville, Md., for appellants.
Carl F. Bauersfeld, Washington, D. C., for appellees. With him on brief was Charles H. Burton, Washington, D. C., for appellee Calvary Baptist Church. William A. Glasgow, Stephen A. Trimble and Nicholas D. Ward, Washington, D. C., for appellee St. Matthews Cathedral.
Leo Pfeffer, New York City, and Paul S. Berger, Washington, D. C., for American Jewish Congress as amicus curiae urging affirmance.
Mr. Justice STEWART delivered the opinion of the Court.
1
Sallye Lipscomb French died 20 days after executing a will leaving most of her estate to certain churches in the District of Columbia. Section 18-302 of the D.C.Code voids religious devises and bequests made within 30 days of death.1 Prevented by this statutory provision from carrying out the terms of the will, the appellee as executor sought instructions in the Probate Division of the Superior Court of the District of Columbia. Both that court and the District of Columbia Court of Appeals held the statute unconstitutional.2 The decedent's heirs and next-of-kin brought an appeal to this Court under 28 U.S.C. § 1257(1), which provides for review by appeal in cases "where is drawn in question the validity of a . . . statute of the United States and the decision is against its validity."3 We postponed consideration of the question of our appellate jurisdiction to the hearing of the case on the merits. 430 U.S. 929, 97 S.Ct. 1547, 51 L.Ed.2d 772. Because we conclude that a law applicable only in the District of Columbia is not a "statute of the United States" for purposes of 28 U.S.C. § 1257(1), we dismiss the appeal for lack of jurisdiction.
2
Before 1970 the judgments of the trial courts of the District of Columbia were appealable to the United States Court of Appeals.4 Ultimate review in this Court was available under 28 U.S.C. § 1254, which was applicable to all of the 11 Federal Courts of Appeals.5 A right of appeal to this Court from the United States Court of Appeals for the District of Columbia Circuit thus existed only where that court had invalidated a state statute. All other cases, including those challenging the validity of local statutes of the District of Columbia were reviewable here by writ of certiorari.6
3
The District of Columbia Court Reform and Criminal Procedure Act of 19707 substantially modified the structure and jurisdiction of the courts in the District, but there is no indication that Congress intended these changes to enlarge the right of appeal to this Court from the courts of that system. The aim of the Act was to establish "a Federal-State court system in the District of Columbia analogous to court systems in the several States." H.R.Rep. No. 91-907, p. 35 (1970). The Act provided that cases would no longer have to proceed from the local courts to the United States Court of Appeals, and then to this Court under § 1254. Instead, the judgments of the newly created local Court of Appeals were made directly reviewable here, like the judgments of state courts.8 Accordingly, § 1257, the jurisdictional provision concerning Supreme Court review of state-court decisions, was amended to include the District of Columbia Court of Appeals as "the highest court of a State."9
4
In Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973), we recognized that the analogy between the local courts of the District and the courts of the States was not perfect. Although Congress had expressly classified the District of Columbia Court of Appeals as a state court, it had not indicated that D.C.Code provisions should be treated as state statutes. Thus, where the District of Columbia courts had upheld a local statute against constitutional attack, we concluded that an appeal as of right would not lie to this Court under § 1257(2), which applies to state-court decisions rejecting constitutional challenges to state statutes. Underlying our decision was the long-established principle that counsels a narrow construction of jurisdictional provisions authorizing appeals as of right to this Court, in the absence of clear congressional intent to enlarge the Court's mandatory jurisdiction. 411 U.S., at 396, 93 S.Ct., at 1675.
5
The legislative history of the 1970 Act is as unenlightening about the applicability of § 1257(1) as it is about that of § 1257(2). In the Senate Committee hearings on an early version of the Act, there was one brief reference to § 1257:
6
"The Chairman [Senator Tydings]. . . . On page 3, section 11-102 there is a provision relating to appeal:
7
" 'The highest court of the District of Columbia is the District of Columbia Court of Appeals. For purposes of appeal to the Supreme Court and other purposes of law, it shall be deemed the highest court of the state.' [Emphasis added.]
8
"Now, my question to you is a question raised about that language. Is that sufficiently broad to allow the Supreme Court review by certiorari?
9
"Mr. Kleindienst. We believe so.
10
"The Chairman. As well as appeal pursuant to 28 U.S.C. 12750 [sic.]? Because the language, you know, leaves out certiorari. Certiorari is an important vehicle to reach the Supreme Court.
11
"Mr. Kleindienst. We believe the language covers certiorari but it would be easy to clarify."10
12
Although Senator Tydings seems to have assumed that both the appeal and certiorari provisions of § 1257 would apply to the judgments of the District of Columbia Court of Appeals, it is not clear whether he thought the appeal provision of § 1257(1) or that of § 1257(2) would govern. And if he had in mind § 1257(1), he made no reference to possible distinctions between federal statutes of solely local concern and those of broader scope. Nowhere in the legislative history do we find further discussion of this point.
13
The omission is understandable. The question had not arisen before the 1970 reorganization because § 1257 then applied only to state courts, which seldom if ever confronted federal statutes of wholly local application. Although the courts of the District were accustomed to seeing such federal statutes, the jurisdictional provision that applied to them did not mention "statutes of the United States." Rather, § 1254 divides cases from the courts of appeals into two categories—those invalidating state statutes and all others.
14
Although the precise question at issue in this case thus seems to have escaped the attention of Congress, it was clear that a general right of appeal from the District of Columbia courts to this Court on questions concerning the validity of local law did not exist at the time of the 1970 reorganization.11 In the absence of an express provision so ordaining, it cannot be assumed that Congress intended to enlarge this Court's mandatory appellate jurisdiction by simply shifting review of District of Columbia court judgments from § 1254 to § 1257.12
15
Indeed, the purposes of the 1970 Act strongly imply the contrary. As we noted in Palmore, Congress intended "to establish an entirely new court system with functions essentially similar to those of the local courts found in the 50 States of the Union with responsibility for trying and deciding those distinctively local controversies that arise under local law, including local criminal laws having little, if any, impact beyond the local jurisdiction." 411 U.S., at 409, 93 S.Ct., at 1682.
16
This Court's mandatory appellate jurisdiction over state-court judgments under § 1257 is reserved for cases threatening the supremacy of federal law. When state courts invalidate state statutes on federal grounds, uniformity of national law is not threatened and there is no automatic right of appeal to this Court. From the analogy of the local D.C. courts to state courts drawn by Congress in the 1970 Act, it follows that no right of appeal should lie to this Court when a local court of the District invalidates a law of exclusively local application.13 From such judgments and from similar state-court judgments, there is no appeal to this Court, but only review by writ of certiorari according to the terms of § 1257(3).14
17
This construction of § 1257(1) neither enlarges nor reduces this Court's mandatory appellate jurisdiction as a result of the 1970 Act. It gives litigants in the courts of the District the same right of review in this Court as is enjoyed by litigants in the courts of the States.
18
For the reasons expressed in this opinion, the appeal is dismissed for lack of jurisdiction.15
19
It is so ordered.
20
Mr. Justice WHITE, with whom THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice POWELL join, dissenting.
21
In Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973), this Court held that provisions of the District of Columbia Code enacted by the United States Congress were not "state laws" within the meaning of 28 U.S.C. § 1257(2) and that a decision of the D.C. Court of Appeals upholding such provisions was reviewable in this Court only on certiorari. Today, this Court holds that an Act of Congress relating exclusively to the District of Columbia is also not a "statute of the United States" within the meaning of 28 U.S.C. § 1257(1). Thus, even where the D.C. Court of Appeals strikes down such a congressional enactment on federal constitutional grounds, there is no right of direct appeal to this Court, review being limited to this Court's discretionary acceptance of a writ of certiorari. Because I believe that this holding is inconsistent with the prior decisions of this Court and contrary to the congressional scheme determining Supreme Court jurisdiction, I dissent from the majority opinion.
22
* In the early years of the judicial system, all cases from the federally created court in the District of Columbia involving more than a specified jurisdictional amount were appealable to the United States Supreme Court.1 In 1885, the jurisdictional amount was raised to $5,000, but special provision was made for appeal without regard to the sum in dispute in
23
"any case . . . in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States . . . " Ch. 355, 23 Stat. 443.
24
Since the enactment of this statute, this Court has consistently held that a constitutional attack upon a congressional enactment relating exclusively to the District of Columbia draws into question a "statute" or "law" of the United States within the meaning of the relevant jurisdictional statute.
25
This view underlies the opinion in Baltimore & Potomac R. Co. v. Hopkins, 130 U.S. 210, 9 S.Ct. 503, 32 L.Ed. 908 (1889), in which an absence of jurisdiction was found for another reason.2 It was made explicit in Parsons v. District of Columbia, 170 U.S. 45, 18 S.Ct. 521, 42 L.Ed. 943 (1898), in which the Court upheld its jurisdiction over a challenge to a congressional scheme for water main assessments in the District of Columbia. "[W]e think it plainly appears," the Court stated, "that the validity of statutes of the United States and of an authority exercised under the United States was drawn into question in the court below . . . ." Id., at 50. Accord, Smoot v. Heyl, 227 U.S. 518, 33 S.Ct. 336, 57 L.Ed. 621 (1913) (upholding Supreme Court jurisdiction over a challenge to the validity of a District of Columbia party-wall regulation).
26
In 1911 the Congress abolished this Court's jurisdiction over appeals from the District of Columbia predicated on jurisdictional amount, but added a provision for appeal in cases in which "the construction of any law of the United States is drawn in question by the defendant." 36 Stat. 1159. In American Security & Trust Co. v. District of Columbia Comm'rs, 224 U.S. 491, 32 S.Ct. 553, 56 L.Ed. 856 (1912), the Court construed this provision not to include laws pertaining exclusively to the District of Columbia, because the alternative construction would have defeated the congressional purpose "to effect a substantial relief to this court from indiscriminate appeals where a sum above $5,000 was involved." Id., at 495, 32 S.Ct., at 554. Nevertheless, the Court noted that "there is no doubt that the special act of Congress was in one sense a law of the United States" and the Court's opinion distinguished the statutory provision pertaining to appeals in "Cases involving the constitutionality of any law of the United States."
27
In Heald v. District of Columbia, 254 U.S. 20, 41 S.Ct. 42, 65 L.Ed. 106 (1920), the Court squarely held once again that a constitutional attack on a federal statute pertaining exclusively to the District of Columbia drew into question the validity of a "law of the United States" within the meaning of the appeal statute. The Court explicitly rejected the suggestion that American Security & Trust Co. was controlling, since that case itself had recognized a "difference between the two subjects." 254 U.S., at 22, 41 S.Ct., at 43. The Court also noted that the current appeal statute had been intended to "re-enact provisions of prior statutes which had been construed as conveying authority to review controversies concerning the constitutional power of Congress to enact local statutes." Id., at 22-23, 41 S.Ct., at 43, citing Parsons v. District of Columbia, supra, and Smoot v. Heyl, supra. Since the Heald decision, this Court has not commented further on the issue raised therein,3 but commentators have concluded that a "federal statute, for purposes of § 1257(1), plainly means enactments by the Congress of the United States, including those which are limited in operation to the District of Columbia . . . ." R. Stern & E. Gressman, Supreme Court Practice 82 (4th ed. 1969). Accord, Boskey, Appeals from State Courts under the Federal Judicial Code, 30 Va.L.Rev. 57, 59 (1943).4
II
28
It was against this background that Congress enacted the District of Columbia Court Reform and Criminal Procedure Act of 1970. 84 Stat. 473. It established a separate court system for the District of Columbia, headed by the District of Columbia Court of Appeals. Appeals from that court to the United States Supreme Court were to be regulated by 28 U.S.C. § 1257, which was amended to provide:
29
"For the purposes of this section, the term 'highest court of a State' includes the District of Columbia Court of Appeals."
30
The Act also included a provision specifying that for purposes of determining the original jurisdiction of the district courts, "references to laws of the United States or Acts of Congress do not include laws applicable exclusively to the District of Columbia." 28 U.S.C. § 1363, added by § 172(c)(1) of the Reorganization Act, 84 Stat. 590. No proviso was added to 28 U.S.C. § 1257(1) to indicate that the reference to "statute of the United States" in that provision was not to include federal laws pertaining to the District of Columbia.
31
The clear implication of Congress' action with respect to § 1257 was that statutes relating to the District of Columbia would continue to be viewed, as they had been in the past, as statutes of the United States. Although Congress amended § 1257, characterizing the District of Columbia Court of Appeals as a "state court," it did not also insert a restrictive provision similar to that limiting the jurisdiction of the district courts with respect to D.C.Code provisions. The legislative history gives no indication that Congress disagreed with the prior decisions of this Court holding that a constitutional attack upon a federal law local in operation would be viewed as a challenge to a "statute" or "law of the United States" within the meaning of the applicable appeal statute. In these circumstances, one can only conclude that the Congress intended that decisions invalidating laws concerning the District of Columbia would receive the same scrutiny from this Court as decisions invalidating other federal laws.5
32
This Court's decision in Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973), supports—if indeed it does not require—that conclusion. The Court there held that provisions of the District of Columbia Code enacted by Congress were not "statutes of a state" within the meaning of § 1257(2) and that D.C. court decisions upholding these laws would be reviewable only on certiorari. The Court reasoned:
33
"We are entitled to assume that in amending § 1257, Congress legislated with care, and that had Congress intended to equate the District Code and state statutes for the purposes of § 1257, it would have said so expressly and not left the matter to mere implication." 411 U.S., at 395, 93 S.Ct., at 1675.
34
The Court suggested that an express provision " 'would have been easy,' " id., at 395 n. 5, quoting Farnsworth v. Montana, 129 U.S. 104, 113, 9 S.Ct. 253, 255, 32 L.Ed. 616 (1889), and pointed out several exceptions for the District of Columbia within the Federal Judicial Code, including the provision added by the 1970 Act excluding federal statutes relating to the District of Columbia from the original jurisdiction of the district courts.
35
This reasoning obviously applies with even greater force to the language of § 1257(1). Had Congress wished to exclude laws relating to the District of Columbia, it could have used almost precisely the same device as was used with respect to district court jurisdiction. "Jurisdictional statutes are to be construed 'with precision and with fidelity to the terms by which Congress has expressed its wishes.' " Palmore v. United States, supra, 411 U.S. at 396, 93 S.Ct., at 1675, quoting Cheng Fan Kwok v. INS, 392 U.S. 206, 212, 88 S.Ct. 1970, 1974, 20 L.Ed.2d 1037 (1968).
36
Read together with Palmore, the effect of this Court's decision is to put District of Columbia statutes in a unique class: They are neither statutes of a State nor statutes of the United States. Whether the District of Columbia Court of Appeals upholds them or strikes them down, there is no appeal to this Court. If Congress had intended that its enactments relating to the District of Columbia were to be treated as mongrel statutes, distinct from the recognized classifications of the Judicial Code, it would surely have said so.6
III
37
Appellee St. Matthew's Cathedral recognizes that this Court's mandatory jurisdiction over appeals of state decisions invalidating federal laws was designed to assure that national legislation would not erroneously be set aside by local courts. Appellee argues that there is no necessity for such review of the decisions of the District of Columbia Court of Appeals because "it is an Article I court over which Congress has plenary power." Brief for Appellee St. Matthew's Cathedral 11. I have some doubt as to whether that power could or should be used in the manner that appellee appears to contemplate. In any event, Congress, in amending § 1257, has made clear that the District of Columbia Court of Appeals should be regarded as the "highest court of a State." Appellee's argument, which is predicated on the notion that the District of Columbia Court of Appeals is a type of federal court, must therefore be rejected.
38
Nor do I agree that we should view federal legislation relating to the District of Columbia as not sufficiently national in significance to merit mandatory review. We are not free to disregard § 1257(1). Moreover, the clause giving the Congress power to legislate for the District of Columbia stands beside the other enumerated powers of Congress in Art. I, § 8, of the United States Constitution. " 'The object of the grant of exclusive legislation over the district was . . . national in the highest sense, and the city organized under the grant became the city, not of a state, not of a district, but of a nation.' " O'Donoghue v. United States, 289 U.S. 516, 539-540, 53 S.Ct. 740, at 746, 77 L.Ed. 1356 (1933), quoting Grether v. Wright, 75 F. 742, 756-757 (C.A. 6 1896) (Taft, J.). Though today the District of Columbia has a measure of home rule, the United States retains important interests in the District of Columbia, ranging from extensive federal property to the welfare of hundreds of thousands of federal employees. That the statute involved in this case is narrow in scope should not be permitted to camouflage the Nation's vital interest in the validity of laws governing its Capital.7
39
I can see no reason for denying mandatory jurisdiction of constitutional challenges to D.C.Code provisions other than the general need to lessen the number of cases heard by this Court. While this may be a worthy objective, it should be effectuated by statutory amendment, not strained construction. Jurisdiction is not a handy tool for carving a workload of acceptable size and shape, but a solemn obligation imposed by the Congress and enforceable by every deserving litigant. Because I believe that the Court here shirks that duty, I dissent from the opinion of the Court.
1
Section 18-302 states:
"A devise or bequest of real or personal property to a minister, priest, rabbi, public teacher, or preacher of the gospel, as such, or to a religious sect, order, or denomination, or to or for the support, use, or benefit thereof, or in trust therefor, is not valid unless it is made at least 30 days before the death of the testator."
This provision originated in the Organic Act of 1801, 2 Stat. 103, ch. 15, § 1. It was amended by Congress as recently as 1965. 79 Stat. 688.
2
The Superior Court opinion is unpublished. The opinion of the Court of Appeals appears at Estate of French, 365 A.2d 621 (1976).
Stressing that the statute "is directed only to religious groups and practitioners," the Superior Court held the statute to be "an invalid infringement of the free exercise of religion provisions of the First Amendment" and "invalid as a denial of due process guaranteed by the Fifth Amendment."
The D.C. Court of Appeals invalidated the statute only under the Due Process Clause of the Fifth Amendment. The majority concluded "that the classification established by § 18-302 [religious legatees versus all others] has no rational relationship to the purpose of the legislation and hence denies religious legatees equal protection of the law." Id., at 624.
Six States have somewhat similar statutes, although none of them is restricted to religious bequests and devises. Fla.Stat. § 732.803 (1976); Ga.Code § 113-107 (1975); Idaho Code § 15-2-615 (Supp.1977); Miss.Code Ann. § 91-5-31 (1973); Mont.Rev.Codes Ann. § 91-142 (1964); Ohio Rev.Code Ann. § 2107.06 (1976). As stated above, the D.C. statute's singular focus on religious beneficiaries is apparently what prompted the Superior Court and the Court of Appeals to declare it unconstitutional. Thus the decisions of the trial and appellate courts in this case do not necessarily raise doubts about the constitutionality of the somewhat similar statutes of the other six jurisdictions.
3
Title 28 U.S.C. § 1257 states:
"Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
"(1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity.
"(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.
"(3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.
"For the purposes of this section, the term 'highest court of a State' includes the District of Columbia Court of Appeals."
4
The jurisdiction of the local courts substantially overlapped that of the federal courts in the District before 1970. See Palmore v. United States, 411 U.S. 389, 392 n.2, 93 S.Ct. 1670, 1673, 36 L.Ed.2d 342. Appeals from all these courts were channeled through the Court of Appeals for the District of Columbia, which became the United States Court of Appeals for the District of Columbia Circuit in 1934. Ch. 426, 48 Stat. 926.
5
Title 28 U.S.C. § 1254 states:
"Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:
"(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;
"(2) By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States, but such appeal shall preclude review by writ of certiorari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented;
"(3) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy."
Section 1254 was largely derived from §§ 239 and 240 of the Judiciary Act of 1925, 43 Stat. 938.
Before 1925, there was a right of appeal to the Supreme Court from the Court of Appeals of the District of Columbia (predecessor to the United States Court of Appeals) in cases involving the constitutionality of local statutes, but not in cases involving the construction of local statutes. This rule arose from a somewhat strained construction given the jurisdictional statute of 1911, 36 Stat. 1159, § 250. Paragraph three of that section provided for appeals from the District's courts in "cases involving . . . the constitutionality of any law of the United States . . . ." Paragraph six provided for appeals in "cases in which the construction of any law of the United States is drawn in question by the defendant." The Court construed the same words—"any law of the United States" differently in the two paragraphs.
In American Security & Trust Co. v. District of Columbia Comm'rs, 224 U.S. 491, 32 S.Ct. 553, 56 L.Ed. 856 (1912), the Court concluded that a congressional Act applicable solely to the District of Columbia was not a "law of the United States" for purposes of paragraph six. Mr. Justice Holmes' opinion for the Court reasoned that "all cases in the District arise under acts of Congress and probably it would require little ingenuity to raise a question of construction in almost any one of them." By restricting paragraph six to laws of national scope, the Court thought that its jurisdiction would be "confined to what naturally and properly belongs to it." Id., at 494-495, 32 S.Ct., at 554.
In Heald v. District of Columbia, 254 U.S. 20, 41 S.Ct. 42, 65 L.Ed. 106 (1920), the Court construed paragraph three to allow appeals in cases involving the constitutionality of local statutes. This paragraph re-enacted "provisions of prior statutes which had been construed as conveying authority to review controversies concerning the constitutional power of Congress to enact local statutes." Id., at 22-23, 41 S.Ct., at 43. Although it meant interpreting the identical words in the same jurisdictional statute in different ways, the Court held that the prior construction should continue "in the absence of plain implication to the contrary." Id., at 23, 41 S.Ct., at 43.
6
Or by certification. See 28 U.S.C. § 1254(3), set out in n.5, supra.
Some cases arising in the District reached this Court by routes other than § 1254. In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), the Court heard direct appeals from several three-judge District Court decisions, one of them a decision in the District of Columbia holding a D.C.Code provision unconstitutional. After noting that 28 U.S.C. § 2282 (which has since been repealed) required a three-judge court to hear a challenge to the constitutionality of "any Act of Congress," the Court without further discussion concluded that it saw "no reason to make an exception for Acts of Congress pertaining to the District of Columbia." Id., 394 U.S., at 625 n.4, 89 S.Ct., at 1326.
In United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971), the Court reviewed a District Court judgment holding a criminal provision of the D.C.Code unconstitutional. The United States had taken a direct appeal to the Supreme Court under 18 U.S.C. § 3731 (1964 ed.), which had been recently amended, but which was still applicable to that case. Section 3731 allowed direct appeals "in all criminal cases . . . dismissing any indictment . . . where such decision . . . is based upon the invalidity . . . of the statute upon which the indictment . . . is founded." By a margin of 5-4, the Court held that the word "statute" in § 3731 encompassed D.C.Code provisions. Stressing the nationwide confusion surrounding criminal statutes like the one in question, the Court reasoned that the purpose underlying § 3731 "would not be served by our refusing to decide this case now after it has been orally argued." 402 U.S., at 66, 91 S.Ct., at 1296. Writing for the four dissenters, Mr. Justice Harlan attributed the Court's expansive reading of this jurisdictional provision to the fact that it had been amended and would have no effect upon subsequent cases. Id., at 93, 91 S.Ct., at 1310.
In both these cases, the Court concluded that D.C.Code provisions were federal statutes for purposes of the applicable appellate provisions. However, each jurisdictional provision is to be interpreted in the light of its own antecedents, purposes, and context. See American Security & Trust Co. v. District of Columbia Comm'rs, supra. The special circumstances of these two cases thus render them of little aid in the task of construing § 1257(1).
7
84 Stat. 473.
8
84 Stat. 475, § 111.
9
84 Stat. 590, § 172. See n.3, supra.
10
Hearings on S. 1066, S. 1067, S. 1214, S. 1215, S. 1711, and S. 2601 (Reorganization of the District of Columbia Courts) before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 1159 (1969). The draft of the bill offered by the administration apparently had used the word "appeal" in the broad sense of direct review. The provision was later revised to reflect that intention:
"Final judgments and decrees of the District of Columbia Court of Appeals are reviewable by the Supreme Court of the United States in accordance with section 1257 of title 28, United States Code." 84 Stat. 475.
11
Cf. n.6, supra.
12
As part of the 1970 Court Reform Act, Congress enacted 28 U.S.C. § 1363, which provides:
"For the purposes of this chapter, references to laws of the United States
or Acts of Congress do not include laws applicable exclusively to the District of Columbia."
Chapter 85 of Title 28, to which § 1363 refers, governs the jurisdiction of the United States district courts. The enactment of this section hardly implies that Congress must have intended that references to "laws of the United States" found in all other jurisdictional chapters and sections (including § 1257) would include provisions of the D.C.Code.
Before 1970, the district courts had jurisdiction over some cases arising under D.C.Code provisions. See n.4, supra. This jurisdiction rested on three jurisdictional provisions of the D.C.Code (§§ 11-521, 11-522, 11-523 (1967) ) and on various jurisdictional provisions found in ch. 85, many of which referred to "statutes of the United States" or "Acts of Congress." The 1970 Act repealed these three jurisdictional provisions of the D.C.Code and also enacted 28 U.S.C. § 1363 as a conforming amendment to assure the removal from the jurisdiction of the District Court for the District of Columbia of those cases arising under D.C.Code provisions. In view of its limited focus, the enactment of § 1363 cannot rationally support the inference that Congress examined other jurisdictional provisions and decided, as to them, that references to "statutes of the United States" should include D.C.Code provisions. Such an inference would be especially tenuous if applied to § 1257, because § 1257 did not previously govern cases questioning the validity of D.C.Code provisions. See supra, at 66. In any event, a clearer indication of congressional intent than this sort of negative implication is required to extend this Court's mandatory appellate jurisdiction.
13
It is more the nature of the D.C.Code than its limited geographical impact that distinguishes it from other federal statutes. Unlike most congressional enactments, the Code is a comprehensive set of laws equivalent to those enacted by state and local governments having plenary power to legislate for the general welfare of their citizens.
14
Of course, § 1257(1) would be applicable if the District of Columbia Court of Appeals should invalidate a federal law other than a provision of the D.C.Code.
15
Treating "the papers whereon the appeal was taken . . . as a petition for writ of certiorari," 28 U.S.C. § 2103, we deny the petition. See n.2, supra.
1
See 2 Stat. 106 (judgments of the Circuit Court of the District of Columbia in excess of $100 could be reviewed by appeal or writ of error); ch. 39, 3 Stat. 261 (raising jurisdictional amount to $1,000); 12 Stat. 764 (decisions of the Supreme Court of the District of Columbia, which replaced the Circuit Court, would be reviewable on the same basis).
2
The Court found that the validity of the Act involved there had not been drawn into question.
3
Between 1925 and 1970 all cases from local District of Columbia courts were channeled through the Court of Appeals for the District of Columbia, which later became the United States Court of Appeals for the District of Columbia Circuit. See ante, at 61 n.4. Since that court was clearly a federal court composed of judges tenured under Art. III of the Constitution, there was no need for mandatory review of decisions of that court invalidating federal statutes. Hence its decisions were reviewable in this Court on the same basis as the decisions of the other federal courts of appeals. 43 Stat. 938.
4
As the majority recognizes, see ante, at 63-64, n.6, this Court has recently ruled in other contexts that D.C.Code provisions are "statutes of the United States," United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed. 601 (1971) (criminal appeal statute), and "Acts of Congress," Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (three-judge court appeals). While these decisions may not be directly relevant here, they confirm the traditional understanding that—in the absence of contrary congressional command—congressional enactments dealing with the District of Columbia are to be treated like other federal laws.
5
The majority argues that, as of 1970, no general right of appeal existed from District of Columbia courts to this Court in constitutional challenges to D.C.Code provisions and that "it cannot be assumed that Congress intended to enlarge this Court's mandatory appellate jurisdiction by simply shifting review of District of Columbia court judgments from § 1254 to § 1257." Ante, at 66. This argument is flawed for two reasons. First, as the majority opinion itself concedes, the shift from § 1254 to § 1257 did enlarge this Court's mandatory appellate jurisdiction, by including cases arising in the District of Columbia which invalidated federal statutes of national scope. See ante, at 68 n.14. Second, and more importantly, the shift in review provisions was not a "simple" or technical change, but rather basic to the whole concept of the D.C. court reorganization.
The law established the District of Columbia court system as an independent, local court system. Congress amended § 1257 to make that point unmistakably clear. By virtue of inclusion within § 1257, the decisions of the District of Columbia Court of Appeals would no longer be filtered through the United States Court of Appeals, but would be appealable as state decisions to the United States Supreme Court. Since the scope of appellate jurisdiction specified by § 1257 for state-court decisions is different from that provided under § 1254 for decisions of the United States courts of appeals, there can be little doubt that Congress effected a change in this Court's mandatory appellate jurisdiction.
6
The majority's construction of "statute of the United States" in § 1257(1) is also disturbing because it may ultimately undermine this Court's certiorari jurisdiction over cases from the D.C. Court of Appeals. The majority does not explain its rationale for assuming certiorari jurisdiction in this case. Presumably it views this case as one in which a "right" has been "specially set up or claimed under the Constitution" within the meaning of § 1257(3). However, in cases involving the construction of federal laws dealing with the District of Columbia that approach would not be available. While there is provision in § 1257(3) for cases in which the right is derived from a "statute" of the United States, invocation of that provision would require that the Court interpret identical words in the jurisdictional statute in two different ways, a practice the majority evidently disapproves. See, ante, at 62-63, n.5. Thus, this Court may ultimately be left with no jurisdiction whatsoever over cases in which the D.C. Court of Appeals construes a federal statute dealing with the District of Columbia. It is highly improbable that Congress would have given such free rein in interpreting federal laws to a court which it regarded as "the highest court of a state" or that it would have so restricted this Court's appellate jurisdiction without expressly saying so.
7
The majority opinion argues that no appeal is needed in the circumstances of this case because the "uniformity of national law is not threatened" when a local court invalidates a federal law "of exclusively local application." See ante, at 67, 68. But there are a great number of federal laws which, though applicable only to a limited area, deal with a vital national interest. E. g., Point Reyes National Seashore Act of 1976, 90 Stat. 2515 (designating as wilderness 33,000 acres of land in California). Just as an appeal is allowed to protect these statutes against constitutional attack, an appeal should be allowed for federal legislation dealing with the Nation's Capital.
| 89
|
54 L.Ed.2d 252
98 S.Ct. 315
434 U.S. 77
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Robert J. KOWALSKI et ux.
No. 76-1095.
Argued Oct. 12, 1977.
Decided Nov. 29, 1977.
Syllabus
New Jersey provides a cash meal allowance for its state police troopers, which is paid biweekly in advance in an amount varying with the trooper's rank and is included, although separately stated, with his salary and in his gross pay for purposes of calculating pension benefits. Although troopers are required to remain on call in their assigned patrol areas during their midshift break, they are not required to eat lunch at any particular location, and indeed may eat at home, nor are they required to spend the meal allowance on food. No reduction in the allowance is made for periods when a trooper is not on patrol. Respondents, a trooper and his wife, included only a part of the meal allowances received by the trooper in their 1970 federal income tax return and the Commissioner assessed a deficiency with respect to the remainder. The respondents argued in the Tax Court that the allowance was not income within § 61(a) of the Internal Revenue Code of 1954, which defines gross income as "all income from whatever source derived, including (but not limited to) . . . (1) Compensation for services, including fees, commissions, and similar items." In the alternative, they argued that the allowances were excludable from § 61 income because of § 119 of the Code, which creates an exclusion for "the value of any meals . . . furnished to [an employee] by his employer for the convenience of the employer, but only if . . . the meals are furnished on the business premises of the employer," and further provides that "[in] determining whether meals are furnished . . . for the convenience of the employer, the provisions of an employment contract or of a State statute fixing terms of employment shall not be determinative of whether the meals . . . are intended as compensation." The Tax Court rejected both contentions, but the Court of Appeals reversed. Held:
1. In the absence of a specific exemption, the cash meal-allowance payments are included in gross income under § 61(a), since they are "undeniabl[y] accessions to wealth, clearly realized, and over which the [trooper has] complete dominion." Commissioner of Internal Revenue v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 476, 99 L.Ed. 483. P. 82-84.
2. The payments are not subject to exclusion from gross income under § 119, since § 119, by its terms, covers meals furnished by the employer and not cash reimbursements for meals. P. 84.
3. No specific exemption for the payments can be claimed on the basis of the once-recognized doctrine that benefits conferred by an employer on an employee "for the convenience of the employer" are not income within the meaning of the Internal Revenue Code, since it appears from the legislative history of § 119 that it was intended comprehensively to modify the prior law, both expanding and contracting the exclusion for meals previously provided, and therefore it must be construed as a replacement for the prior law, designed to end the confusion that had developed respecting the convenience-of-the-employer doctrine as a determinant of the tax status of meals. Pp. 84-95.
3rd Cir., 544 F.2d 686, reversed.
Stuart A. Smith, Washington, D. C., for petitioner.
Carl B. Cordes, New York City, for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case presents the question whether cash payments to state police troopers, designated as meal allowances, are included in gross income under § 61(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 61(a),1 and, if so, are otherwise excludable under § 119 of the Code, 26 U.S.C. § 119.2
2
* The pertinent facts are not in dispute. Respondent3 is a state police trooper employed by the Division of State Police of the Department of Law and Public Safety of the State of New Jersey. During 1970, the tax year in question, he received a base salary of $8,739.38, and an additional $1,697.544 designated as an allowance for meals.
3
The State instituted the cash meal allowance for its state police officers in July 1949. Prior to that time, all troopers were provided with midshift5 meals in kind at various meal stations located throughout the State. A trooper unable to eat at an official meal station could, however, eat at a restaurant and obtain reimbursement. The meal-station system proved unsatisfactory to the State because it required troopers to leave their assigned areas of patrol unguarded for extended periods of time. As a result, the State closed its meal stations and instituted a cash-allowance system. Under this system, troopers remain on call in their assigned patrol areas during their midshift break. Otherwise, troopers are not restricted in any way with respect to where they may eat in the patrol area and, indeed, may eat at home if it is located within that area. Troopers may also bring their midshift meal to the job and eat it in or near their patrol cars.
4
The meal allowance is paid biweekly in advance and is included, although separately stated, with the trooper's salary. The meal-allowance money is also separately accounted for in the State's accounting system. Funds are never commingled between the salary and meal-allowance accounts. Because of these characteristics of the meal-allowance system, the Tax Court concluded that the "meal allowance was not intended to represent additional compensation." 65 T.C. 44, 47 (1975).
5
Notwithstanding this conclusion, it is not disputed that the meal allowance has many features inconsistent with its characterization as a simple reimbursement for meals that would otherwise have been taken at a meal station. For example, troopers are not required to spend their meal allowances on their midshift meals, nor are they required to account for the manner in which the money is spent. With one limited exception not relevant here,6 no reduction in the meal allowance is made for periods when a trooper is not on patrol because, for example, he is assigned to a headquarters building or is away from active duty on vacation, leave, or sick leave. In addition, the cash allowance for meals is described on a state police recruitment brochure as an item of salary to be received in addition to an officer's base salary and the amount of the meal allowance is a subject of negotiations between the State and the police troopers' union. Finally, the amount of an officer's cash meal allowance varies with his rank7 and is included in his gross pay for purposes of calculating pension benefits.
6
On his 1970 income tax return, respondent reported $9,066 in wages. That amount included his salary plus $326.45 which represented cash meal allowances reported by the State on respondent's Wage and Tax Statement (Form W—2).8 The remaining amount of meal allowance, $1,371.09, was not reported. On audit, the Commissioner determined that this amount should have been included in respondent's 1970 income and assessed a deficiency.
7
Respondent sought review in the United States Tax Court, arguing that the cash meal allowance was not compensatory but was furnished for the convenience of the employer and hence was not "income" within the meaning of § 61(a) and that, in any case the allowance could be excluded under § 119. In a reviewed decision, the Tax Court, with six dissents,9 held that the cash meal payments were income within the meaning of § 61 and, further that such payments were not excludable under § 119.10 65 T.C. 44 (1975). The Court of Appeals for the Third Circuit, in a per curiam opinion, held that its earlier decision in Saunders v. Commissioner of Internal Revenue, 215 F.2d 768 (1954), which determined that cash payments under the New Jersey meal-allowance program were not taxable, required reversal. 544 F.2d 686 (1976). We granted certiorari to resolve a conflict among the Courts of Appeals on the question.11 430 U.S. 944, 97 S.Ct. 1578, 51 L.Ed.2d 791 (1977). We reverse.
II
A.
8
The starting point in the determination of the scope of "gross income" is the cardinal principle that Congress in creating the income tax intended "to use the full measure of its taxing power." Helvering v. Clifford, 309 U.S. 331, 334, 60 S.Ct. 554, 556, 84 L.Ed. 788 (1940); accord, Helvering v. Midland Mutual Life Ins. Co., 300 U.S. 216, 223, 57 S.Ct. 423, 425, 81 L.Ed. 612 (1937); Douglas v. Willcuts, 296 U.S. 1, 9, 56 S.Ct. 59, 62, 80 L.Ed. 3 (1935); Irwin v. Gavit, 268 U.S. 161, 166, 45 S.Ct. 475, 69 L.Ed. 897 (1925). In applying this principle to the construction of § 22(a) of the Internal Revenue Code of 193912 this Court stated that "Congress applied no limitations as to the source of taxable receipts, nor restrictive labels as to their nature [, but intended] to tax all gains except those specifically exempted." Commissioner of Internal Revenue v. Glenshaw Glass Co., 348 U.S. 426, 429-430, 75 S.Ct. 473, 476, 99 L.Ed. 483 (1955), citing Commissioner of Internal Revenue v. Jacobson, 336 U.S. 28, 49, 69 S.Ct. 358, 369, 93 L.Ed. 477 (1949), and Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87-91, 55 S.Ct. 50, 51-53, 79 L.Ed. 211 (1934). Although Congress simplified the definition of gross income in § 61 of the 1954 Code, it did not intend thereby to narrow the scope of that concept. See Commissioner of Internal Revenue v. Glenshaw Glass Co., supra, at 432, 75 S.Ct. at 477 and n. 11; H.R.Rep. No. 1337, 83d Cong., 2d Sess., A18 (1954); S.Rep. No. 1622, 83d Cong., 2d Sess., 168 (1954); U.S.Code Cong. & Admin.News 1954, p. 4025.13 In the absence of a specific exemption, therefore, respondent's meal-allowance payments are income within the meaning of § 61 since, like the payments involved in Glenshaw Glass Co., the payments are "undeniabl[y] accessions to wealth, clearly realized, and over which the [respondent has] complete dominion." Commissioner of Internal Revenue v. Glenshaw Glass Co., supra, at 431, 75 S.Ct. at 477. See also Commissioner of Internal Revenue v. LoBue, 351 U.S. 243, 247, 76 S.Ct. 800, 803, 100 L.Ed. 1142 (1956); Van Rosen v. Commissioner, 17 T.C. 834, 838 (1951).
9
Respondent contends, however, that § 119 can be construed to be a specific exemption covering the meal-allowance payments to New Jersey troopers. Alternatively, respondent argues that notwithstanding § 119 a specific exemption may be found in a line of lower-court cases and administrative rulings which recognize that benefits conferred by an employer on an employee "for the convenience of the employer"—at least when such benefits are not "compensatory"—are not income within the meaning of the Internal Revenue Code. In responding to these contentions, we turn first to § 119. Since we hold that § 119 does not cover cash payments of any kind, we then trace the development over several decades of the convenience-of-the-employer doctrine as a determinant of the tax status of meals and lodging, turning finally to the question whether the doctrine as applied to meals and lodging survives the enactment of the Internal Revenue Code of 1954.
B
10
Section 119 provides that an employee may exclude from income "the value of any meals . . . furnished to him by his employer for the convenience of the employer, but only if . . . the meals are furnished on the business premises of the employer . . . ." By its terms, § 119 covers meals furnished by the employer and not cash reimbursements for meals. This is not a mere oversight. As we shall explain at greater length below, the form of § 119 which Congress enacted originated in the Senate and the Report accompanying the Senate bill is very clear: "Section 119 applies only to meals or lodging furnished in kind." S.Rep. No. 1622, 83d Cong., 2d Sess., 190 (1954); U.S.Code Cong. & Admin.News 1954, p. 4825. See also Treas.Reg. § 1.119-1(c)(2), 26 CFR § 1.119-1 (1977). Accordingly, respondent's meal-allowance payments are not subject to exclusion under § 119.
C
11
The convenience-of-the-employer doctrine is not a tidy one. The phrase "convenience of the employer" first appeared in O.D. 265, 1 Cum.Bull. 71 (1919), in a ruling exempting from the income tax board and lodging furnished seamen aboard ship. The following year, T.D. 2992, 2 Cum.Bull. 76 (1920), was issued and added a convenience-of-the-employer section to Treas.Regs. 45, Art. 33, the income tax regulations then in effect.14 As modified, Art. 33 stated:
12
"Art. 33. Compensation paid other than in cash. . . . When living quarters such as camps are furnished to employees for the convenience of the employer, the ratable value need not be added to the cash compensation of the employee, but where a person receives as compensation for services rendered a salary and in addition thereto living quarters, the value to such person of the quarters furnished constitutes income subject to tax. . . ."
13
While T.D. 2992 extended the convenience-of-the-employer test as a general rule solely to items received in kind, O.D. 514, 2 Cum.Bull. 90 (1920), extended the convenience-of-the-employer doctrine to cash payments for "supper money."15
14
The rationale of both T.D. 2992 and O.D. 514 appears to have been that benefits conferred by an employer on an employee in the designated circumstances were not compensation for services and hence not income. Subsequent rulings equivocate on whether the noncompensatory character of a benefit could be inferred merely from its characterization by the employer or whether there must be additional evidence that employees are granted a benefit solely because the employer's business could not function properly unless an employee was furnished that benefit on the employer's premises. O.D. 514, for example, focuses only on the employer's characterization.16 Two rulings issued in 1921, however, dealing respectively with cannery workers17 and hospital employees,18 emphasize the necessity of the benefits to the functioning of the employer's business, and this emphasis was made the authoritative interpretation of the convenience-of-the-employer provisions of the regulations in Mim. 5023, 1940-1 Cum.Bull. 14.19
15
Adding complexity, however, is Mim. 6472, 1950—1 Cum.Bull. 15, issued in 1950. This mimeograph states in relevant part:
16
"The 'convenience of the employer' rule is simply an administrative test to be applied only in cases in which the compensatory character of . . . benefits is not otherwise determinable. It follows that the rule should not be applied in any case in which it is evident from the other circumstances involved that the receipt of quarters or meals by the employee represents compensation for services rendered." Ibid. Mimeograph 6472 expressly modified all previous rulings which had suggested that meals and lodging could be excluded from income upon a simple finding that the furnishing of such benefits was necessary to allow an employee to perform his duties properly.20 However, the ruling apparently did not affect O.D. 514, which, as noted above, creates an exclusion from income based solely on an employer's characterization of a payment as noncompensatory.
17
Coexisting with the regulations and administrative determinations of the Treasury, but independent of them, is a body of case law also applying the convenience-of-the-employer test to exclude from an employee's statutory income benefits conferred by his employer.
18
An early case is Jones v. United States, 60 Ct.Cl. 552 (1925). There the Court of Claims ruled that neither the value of quarters provided an Army officer for nine months of a tax year nor payments in commutation of quarters paid the officer for the remainder of the year were includable in income. The decision appears to rest both on a conclusion that public quarters by tradition and law were not "compensation received as such" within the meaning of § 213 of the Revenue Act of 1921, 42 Stat. 237, and also on the proposition that "public quarters for the housing of . . . officers is as much a military necessity as the procurement of implements of warfare or the training of troops." 60 Ct.Cl., at 569; see id., at 565-568. The Court of Claims, in addition, rejected the argument that money paid in commutation of quarters was income on the ground that it was not "gain derived . . . from labor" within the meaning of Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521 (1920), but apparently was at most a reimbursement to the officer for furnishing himself with a necessity of his job in those instances in which the Government found it convenient to leave the task of procuring quarters to an individual officer. 60 Ct.Cl., at 574-578.
19
Subsequent judicial development of the convenience-of-the-employer doctrine centered primarily in the Tax Court. In two reviewed cases decided more than a decade apart, Benaglia v. Commissioner, 36 B.T.A. 838 (1937), and Van Rosen v. Commissioner, 17 T.C. 834 (1951), that court settled on the business-necessity rationale for excluding food and lodging from an employee's income.21 Van Rosen's unanimous decision is of particular interest in interpreting the legislative history of the 1954 recodification of the Internal Revenue Code since it predates that recodification by only three years. There, the Tax Court expressly rejected any reading of Jones, supra, that would make tax consequences turn on the intent of the employer, even though the employer in Van Rosen as in Jones was the United States and, also as in Jones, the subsistence payments involved in the litigation were provided by military regulation.22 In addition, Van Rosen refused to follow the Jones holding with respect to cash allowances, apparently on the theory that a civilian who receives cash allowances for expenses otherwise nondeductible has funds he can "take, appropriate, use and expend," 17 T.C. at 838, in substantially the same manner as "any other civilian employee whose employment is such as to permit him to live at home while performing the duties of his employment." Id., at 836; see id., at 839-840. It is not clear from the opinion whether the last conclusion is based on notions of equity among taxpayers or is simply an evidentiary conclusion that, since Van Rosen was allowed to live at home while performing his duties, there was no business purposes for the furnishing of food and lodging.
20
Two years later, the Tax Court in an unreviewed decision in Doran v. Commissioner, 21 T.C. 374 (1953), returned in part to the employer's-characterization rationale rejected by Van Rosen. In Doran, the taxpayer was furnished lodging in kind by a state school. State law required the value of the lodging to be included in the employee's compensation. Although the court concluded that the lodging was furnished to allow the taxpayer to be on 24-hour call, a reason normally sufficient to justify a convenience-of-the-employer exclusion,23 it required the value of the lodging to be included in income on the basis of the characterization of the lodging as compensation under state law. The approach taken in Doran is the same as that in Mim. 6472, supra.24 However, the Court of Appeals for the Second Circuit, in Diamond v. Sturr, 221 F.2d 264 (1955), on facts indistinguishable from Doran, reviewed the law prior to 1954 and held that the business-necessity view of the convenience-of-the-employer test, "having persisted through the interpretations of the Treasury and the Tax Court throughout years of re-enactment of the Internal Revenue Code," was the sole test to be applied. 221 F.2d at 268.
D
21
Even if we assume that respondent's meal-allowance payments could have been excluded from income under the 1939 Code pursuant to the doctrine we have just sketched, we must nonetheless inquire whether such an implied exclusion survives the 1954 recodification of the Internal Revenue Code. Cf. Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 46, 83 L.Ed. 52 (1938). Two provisions of the 1954 Code are relevant to this inquiry: § 119 and § 120,25 now repealed,26 which allowed police officers to exclude from income subsistence allowances of up to $5 per day.
22
In enacting § 119, the Congress was determined to "end the confusion as to the tax status of meals and lodging furnished an employee by his employer." H.R.Rep. No. 1337, 83d Cong., 2d Sess., 18 (1954); S.Rep. No. 1622, 83d Cong., 2d Sess., 19 (1954); U.S.Code Cong. & Admin.News 1954, p. 4042. However, the House and Senate initially differed on the significance that should be given the convenience-of-the-employer doctrine for the purposes of § 119. As explained in its Report, the House proposed to exclude meals from gross income "if they [were] furnished at the place of employment and the employee [was] required to accept them at the place of employment as a condition of his employment." H.R.Rep. No. 1337, supra, at 18; see H.R. 8300, 83d Cong., 2d Sess., § 119 (1954); U.S.Code Cong. & Admin.News 1954, p. 4042. Since no reference whatsoever was made to the concept, the House view apparently was that a statute "designed to end the confusion as to the tax status of meals and lodging furnished an employee by his employer" required complete disregard of the convenience-of-the-employer doctrine; U.S.Code Cong. & Admin.News 1954, p. 4042.
23
The Senate, however, was of the view that the doctrine had at least a limited role to play. After noting the existence of the doctrine and the Tax Court's reliance on state law to refuse to apply it in Doran v. Commissioner, supra, the Senate Report states:
24
"Your committee believes that the House provision is ambiguous in providing that meals or lodging furnished on the employer's premises, which the employee is required to accept as a condition of his employment, are excludable from income whether or not furnished as compensation. Your committee has provided that the basic test of exclusion is to be whether the meals or lodging are furnished primarily for the convenience of the employer (and thus excludable) or whether they were primarily for the convenience of the employee (and therefore taxable). However, in deciding whether they were furnished for the convenience of the employer, the fact that a State statute or an employment contract fixing the terms of the employment indicate the meals or lodging are intended as compensation is not to be determinative. This means that employees of State institutions who are required to live and eat on the premises will not be taxed on the value of the meals and lodging even though the State statute indicates the meals and lodging are part of the employee's compensation." S.Rep. No. 1622, supra, at 19; U.S.Code Cong. & Admin.News 1954, p. 4649.
25
In a technical appendix, the Senate Report further elaborated:
26
"Section 119 applies only to meals or lodging furnished in kind. Therefore, any cash allowances for meals or lodging received by an employee will continue to be includible in gross income to the extent that such allowances constitute compensation." Id., at 190-191; U.S.Code Cong. & Admin.News 1954, p. 4825.
27
After conference, the House acquiesced in the Senate's version of § 119. Because of this, respondent urges that § 119 as passed did not discard the convenience-of-the-employer doctrine, but indeed endorsed the doctrine shorn of the confusion created by Mim. 6472 and cases like Doran. Respondent further argues that, by negative implication, the technical appendix to the Senate Report creates a class of noncompensatory cash meal payments that are to be excluded from income. We disagree.
28
The Senate unquestionably intended to overrule Doran and rulings like Mim. 6472. Equally clearly the Senate refused completely to abandon the convenience-of-the-employer doctrine as the House wished to do. On the other hand, the Senate did not propose to leave undisturbed the convenience-of-the-employer doctrine as it had evolved prior to the promulgation of Mim. 6472. The language of § 11927 quite plainly rejects the reasoning behind rulings like O.D. 514, see n. 15, supra, which rest on the employer's characterization of the nature of a payment.28 This conclusion is buttressed by the Senate's choice of a term of art, "convenience of the employer," in describing one of the conditions for exclusion under § 119. In so choosing, the Senate obviously intended to adopt the meaning of that term as it had developed over time, except, of course, to the extent § 119 overrules decisions like Doran. As we have noted above, Van Rosen v. Commissioner, 17 T.C. 834 (1951), provided the controlling court definition at the time of the 1954 recodification and it expressly rejected the Jones theory of "convenience of the employer"—and by implication the theory of O.D. 514—and adopted as the exclusive rationale the business-necessity theory. See 17 T.C., at 838-840. The business-necessity theory was also the controlling administrative interpretation of "convenience of the employer" prior to Mim. 6472. See supra, at 85-86, and n. 19. Finally, although the Senate Report did not expressly define "convenience of the employer" it did describe those situations in which it wished to reverse the courts and create an exclusion as those where "[an] employee must accept . . . meals or lodging in order properly to perform his duties." S.Rep. No. 1622, supra, at 190; U.S.Code Cong. & Admin.News 1954, p. 4825.
29
As the last step in its restructuring of prior law, the Senate adopted an additional restriction created by the House and not theretofore a part of the law, which required that meals subject to exclusion had to be taken on the business premises of the employer. Thus § 119 comprehensively modified the prior law, both expanding and contracting the exclusion for meals and lodging previously provided, and it must therefore be construed as its draftsmen obviously intended it to be—as a replacement for the prior law, designed to "end [its] confusion."
30
Because § 119 replaces prior law, respondent's further argument—that the technical appendix in the Senate Report recognized the existence under § 61 of an exclusion for a class of noncompensatory cash payments—is without merit. If cash meal allowances could be excluded on the mere showing that such payments served the convenience of the employer, as respondent suggests, then cash would be more widely excluded from income than meals in kind, an extraordinary result given the presumptively compensatory nature of cash payments and the obvious intent of § 119 to narrow the circumstances in which meals could be excluded. Moreover, there is no reason to suppose that Congress would have wanted to recognize a class of excludable cash meal payments. The two precedents for the exclusion of cash—O.D. 514 and Jones v. United States—both rest on the proposition that the convenience of the employer can be inferred from the characterization given the cash payments by the employer, and the heart of this proposition is undercut by both the language of § 119 and the Senate Report. Jones also rests on Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521 (1920), but Congress had no reason to read Eisner's definition of income into § 61 and, indeed, any assumption that Congress did is squarely at odds with Commissioner of Internal Revenue v. Glenshaw Glass Co., 348 U.S. 426, 75 S.Ct. 473, 99 L.Ed.2d 483 (1955).29 See id., at 430-431, 75 S.Ct. 475-476. Finally, as petitioner suggests, it is much more reasonable to assume that the cryptic statement in the technical appendix—"cash allowances . . . will continue to be includable in gross income to the extent that such allowances constitute compensation"—was meant to indicate only that meal payments otherwise deductible under § 162(a)(2) of the 1954 Code30 were not affected by § 119.
31
Moreover, even if we were to assume with respondent that cash meal payments made for the convenience of the employer could qualify for an exclusion notwithstanding the express limitations upon the doctrine embodied in § 119, there would still be no reason to allow the meal allowance here to be excluded. Under the pre-1954 convenience-of-the-employer doctrine respondent's allowance is indistinguishable from that in Van Rosen v. Commissioner, supra, and hence it is income. Indeed, the form of the meal allowance involved here has drastically changed from that passed on in Saunders v. Commissioner of Internal Revenue, 215 F.2d 768 (CA3 1954), relied on by the Third Circuit below see supra, at 82, and in its present form the allowance is not excludable even under Saunders' analysis.31 In any case, to avoid the completely unwarranted result of creating a larger exclusion for cash than kind, the meal allowances here would have to be demonstrated to be necessary to allow respondent "properly to perform his duties." There is not even a suggestion on this record of any such necessity.
32
Finally, respondent argues that it is unfair that members of the military may exclude their subsistence allowances from income while respondent cannot. While this may be so, arguments of equity have little force in construing the boundaries of exclusions and deductions from income many of which, to be administrable, must be arbitrary. In any case, Congress has already considered respondent's equity argument and has rejected it in the repeal of § 120 of the 1954 Code. That provision as enacted allowed state troopers like respondent to exclude from income up to $5 of subsistence allowance per day. Section 120 was repealed after only four years, however, because it was "inequitable since there are many other individual taxpayers whose duties also require them to incur subsistence expenditures regardless of the tax effect. Thus, it appears that certain police officials by reason of this exclusion are placed in a more favorable position tax-wise than the other individual income taxpayers who incur the same types of expense. . . ." H.R.Rep. No. 775, 85th Cong., 1st Sess., 7 (1957).
33
Reversed.
34
Mr. Justice BLACKMUN, with whom The Chief Justice joins, dissenting.
35
More than a decade ago the United States Court of Appeals for the Eighth Circuit, in United States v. Morelan, 356 F.2d 199 (1966), held that the $3-per-day subsistence allowance paid Minnesota state highway patrolmen was excludable from gross income under § 119 of the Internal Revenue Code of 1954, 26 U.S.C. § 119. It held, alternatively, that if the allowance were includable in gross income, it was deductible as an ordinary and necessary meal-cost trade or business expense under § 162(a)(2) of the Code, 26 U.S.C. § 162(a)(2). I sat as a Circuit Judge on that case. I was happy to join Chief Judge Vogel's opinion because I then felt, and still do, that it was correct on both grounds. Certainly, despite the usual persistent Government opposition in as many Courts of Appeals as were available, the ruling was in line with other authority at the appellate level at that time.* Two cases, Magness v. Commissioner of Internal Revenue, 247 F.2d 740 (CA5 1957), cert. denied, 355 U.S. 931, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958), and Hyslope v. Commissioner, 21 T.C. 131 (1953), were distinguished. 356 F.2d, at 207.
36
On December 11, 1967, however, this Court by a 5-3 vote decided United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537, restricting to overnight trips the travel-expense deduction for meal costs under § 162(a)(2). That decision, of course, disapproved Morelan's alternative ground for decision. I am frank to say that had I been a Member of this Court at the time Correll was decided, I would have joined its dissent, 389 U.S., at 307, 88 S.Ct., at 449, for I fully agree with Mr. Justice Douglas' observation there, joined by Justices Black and Fortas—an observation which, for me, is unanswerable and unanswered—that the Court, with a bow to the Government's argument for administrative convenience, and conceding an element of arbitrariness, id, at 303, 88 S.Ct. at 447, read the word "overnight" into § 162(a)(2), a statute that speaks only in geographical terms.
37
The taxpayer in the present case, faced with Correll, understandably does not press the § 162(a)(2) issue, but confines his defense to §§ 61 and 119.
38
I have no particular quarrel with the conclusion that the payments received by the New Jersey troopers constituted income to them under § 61. I can accept that, but my stance in Morelan leads me to disagree with the Court's conclusion that the payments are not excludable under § 119. The Court draws an in-cash or in-kind distinction. This has no appeal or persuasion for me because the statute does not speak specifically in such terms. It does no more than refer to "meals . . . furnished on the business premises of the employer," and from those words the Court draws the in-kind consequence. I am not so sure. In any event, for me, as was the case in Morelan, the business premises of the State of New Jersey, the trooper's employer, are wherever the trooper is on duty in that State. The employer's premises are statewide.
39
The Court in its opinion makes only passing comment, with a general reference to fairness, on the ironical difference in tax treatment it now accords to the paramilitary New Jersey state trooper structure and the federal military. The distinction must be embarrassing to the Government in its position here, for the Internal Revenue Code draws no such distinction. The Commissioner is forced to find support for it—support which the Court in its opinion in this case does not stretch to find—only from a regulation. Treas.Reg. § 1.61—2(b), 26 CFR § 1.61-2(b) (1977), excluding subsistence allowances granted the military, and the general references in 37 U.S.C. § 101(25) (1970 ed., Supp. V), added by Pub.L. 93-419, § 1, 88 Stat. 1152, to "regular military compensation" and "Federal tax advantage accruing to the aforementioned allowances because they are not subject to Federal income tax." This, for me, is thin and weak support for recognizing a substantial benefit for the military and denying it for the New Jersey state trooper counterpart.
40
I fear that state troopers the country over, not handsomely paid to begin with, will never understand today's decision. And I doubt that their reading of the Court's opinion—if, indeed, a layman can be expected to understand its technical wording—will convince them that the situation is as clear as the Court purports to find it.
1
"§ 61. Gross income defined.—
"(a) General definition.
"Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items:
"(1) Compensation for services, including fees, commissions, and similar items . . . ."
2
"§ 119. Meals or lodging furnished for the convenience of the employer.
"There shall be excluded from gross income of an employee the value of any meals or lodging furnished to him by his employer for the convenience of the employer, but only if—
"(1) In the case of meals, the meals are furnished on the business premises of the employer . . .
"In determining whether meals . . . are furnished for the convenience of the employer, the provisions of an employment contract or of a State statute fixing terms of employment shall not be determinative of whether the meals or lodging are intended as compensation."
3
References to "respondent" are to Robert J. Kowalski. Nancy A. Kowalski, also a respondent, is a party solely because she filed a joint return with her husband for the 1970 tax year.
4
Respondent was entitled to $1,740 in meal allowances, see n. 7, infra, but for reasons not disclosed by the record received the lesser amount.
5
While on active duty, New Jersey troopers are generally required to live in barracks. Meals furnished in kind at the barracks before or after a patrol shift are not involved in this case. Nor is the meal allowance intended to pay for meals eaten before or after a shift in those instances in which the trooper is not living in the barracks. However, because of the duration of some patrols, a trooper may be required to eat more than one meal per shift while on the road.
6
The amount of the allowance is adjusted only when an officer is on military leave.
7
Troopers, such as respondent, and other noncommissioned officers received $1,740 per year; lieutenants and captains received $1,776, majors $1,848, and the Superintendent $2,136.
8
On October 1, 1970, the Division of State Police began to withhold income tax from amounts paid as cash meal allowances. No claim has been made that the change in the division's withholding policy has any relevance for this case.
9
A seventh judge concurred in the majority opinion with respect to §§ 61 and 119, but dissented on the ground that the meal allowance was deductible under § 162(a) of the Code; see n. 30, infra, as "ordinary and necessary expenditures required as a part of petitioner's duties." 65 T.C., at 63. Since respondent has not made this contention here, we have no occasion to consider it.
10
The Tax Court also determined that amounts of meal allowance attributable to respondent's expenses while "away from home" as defined in § 162(a)(2) Code, see n. 30, infra, were properly deducted from respondent's income as travel expenses. See United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537 (1967). The Commissioner did not appeal from this holding.
11
See Wilson v. United States, 412 F.2d 694 (CA1 1969) (troopers' subsistence allowance taxable); United States v. Keeton, 383 F.2d 429 (CA10 1967) (per curiam ) (troopers' subsistence allowance nontaxable); United States v. Morelan, 356 F.2d 199 (CA8 1966) (same); United States v. Barrett, 321 F.2d 911 (CA5 1963) (same); Magness v. Commissioner, 247 F.2d 740 (CA5 1957) (troopers' subsistence allowance taxable), cert. denied, 355 U.S. 931, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958); Saunders v. Commissioner of Internal Revenue, 215 F.2d 768 (CA3 1954) (troopers' meal allowance nontaxable). See also Ghastin v. Commissioner, 60 T.C. 264 (1973) (troopers' subsistence allowance taxable); Hyslope v. Commissioner, 21 T.C. 131 (1953) (troopers' meal allowance taxable).
12
53 Stat. 9, as amended, ch. 59, 53 Stat. 574. This section provided:
"(a) GENERAL DEFINITION.—'Gross income' includes gains, profits, and income derived from salaries, wages, or compensation for personal service, . . . or gains or profits and income derived from any source whatever." (Emphasis added.)
13
The House and Senate Reports state:
"[Section 61] corresponds to section 22(a) of the 1939 Code. While the language in existing section 22(a) has been simplified, the all-inclusive nature of statutory gross income has not been affected thereby. Section 61(a) is as broad in scope as section 22(a)." U.S.Code Cong. & Admin.News 1954, p. 4155.
14
Substantially identical language appeared in the income tax regulations on the date of the 1954 recodification of the Internal Revenue Code. See Treas.Regs. 111, § 29.22(a)-3 (1943); Treas.Regs. 118, § 39.22(a)-3 (1953).
15
" 'Supper money' paid by an employer to an employee, who voluntarily performs extra labor for his employer after regular business hours, such payment not being considered additional compensation and not being charged to the salary account, is considered as being paid for the convenience of the employer . . .." (Emphasis added.)
16
See n. 15, supra. O.D. 914, 4 Cum.Bull. 85 (1921), is another ruling that makes tax consequences turn on the intention of the employer. Under O.D. 914, lodging furnished to employees of the Indian Service was determined to be income if the Department of the Interior charged such lodging to the appropriation from which compensation was normally paid; otherwise, it was not. See also O.D. 11, 1 Cum.Bull. 66 (1919) (semble ) ("maintenance" paid to Red Cross workers includable in income only to the extent it exceeds actual living expenses).
17
"Where, from the location and nature of the work, it is necessary that employees engaged in fishing and canning be furnished with lodging and sustenance by the employer, the value of such lodging and sustenance may be considered as being furnished for the convenience of the employer and need not, therefore, be included in computing net income . . . ." O.D. 814, 4 Cum.Bull. 84, 84-85 (1921).
18
"Where the employees of a hospital are subject to immediate service on demand at any time during the twenty-four hours of the day and on that account are required to accept quarters and meals at the hospital, the value of such quarters and meals may be considered as being furnished for the convenience of the hospital and does not represent additional compensation to the employees. On the other hand, where the employees . . . could, if they so desired, obtain meals and lodging elsewhere than in the hospital and yet perform the duties required of them by such hospital, the ratable value of the board and lodging furnished is considered additional compensation." O.D. 915, 4 Cum.Bull. 85, 85-86 (1921).
19
"3. As a general rule, the test of 'convenience of the employer' is satisfied if living quarters or meals are furnished to an employee who is required to accept such quarters and meals in order to perform properly his duties." 1940-1 Cum.Bull., at 15, citing O.D. 915, supra, n. 18.
20
See 1950-1 Cum.Bull., at 16.
21
"The better and more accurate statement of the reason for the exclusion from the employee's income of the value of subsistence and quarters furnished in kind is found, we think, in Arthur Benaglia, 36 B.T.A. 838, where it was pointed out that, on the facts, the subsistence and quarters were not supplied by the employer and received by the employee 'for his personal convenience[,] comfort or pleasure, but solely because he could not otherwise perform the services required of him.' In other words, though there was an element of gain to the employee, in that he received subsistence and quarters which otherwise he would have had to supply for himself, he had nothing he could take, appropriate, use and expend according to his own dictates, but rather, the ends of the employer's business dominated and controlled, just as in the furnishing of a place to work and in the supplying of the tools and machinery with which to work. The fact that certain personal wants and needs of the employee were satisfied was plainly secondary and incidental to the employment." Van Rosen v. Commissioner, 17 T.C., at 838.
22
Van Rosen was a civilian ship captain employed by the United States Army Transportation Corps. Id., at 834. In this capacity, his pay and subsistence allowances were determined by the Marine Personnel Regulations of the Transportation Corps of the Army. Id., at 837. His principal argument in the Tax Court was the factual similarity of his case to Jones v. United States, 60 Ct.Cl. 552 (1925). See 17 T.C., at 837.
23
See Benaglia v. Commissioner, 36 B.T.A. 838, 839-840 (1937); O.D. 915, supra, n. 18.
24
See also Diamond v. Sturr, 116 F.Supp. 28 (NDNY 1953), rev'd, 221 F.2d 264 (CA2 1955) (value of lodgings held taxable on same facts as Doran ); Romer v. Commissioner, 28 T.C. 1228 (1957) (following Doran for tax years governed by 1939 Code); Dietz v. Commissioner, 25 T.C. 1255 (1956) (holding the value of an apartment to be includable in income under 1939 Code where the apartment was the only consideration received by the taxpayers for performing janitorial services).
25
"Sec. 120. STATUTORY SUBSISTENCE ALLOWANCE RECEIVED BY POLICE.
"(a) General Rule.—Gross income does not include any amount received as a statutory subsistence allowance by an individual who is employed as a police official . . . .
"(b) Limitations.—
"(1) Amounts to which subsection (a) applies shall not exceed $5 per day.
"(2) If any individual receives a subsistence allowance to which subsection (a) applies, no deduction shall be allowed under any other provision of this chapter for expenses in respect of which he has received such allowance, except to the extent that such expenses exceed the amount excludable under subsection (a) and the excess is otherwise allowable as a deduction under this chapter." 68A Stat. 39.
26
See Technical Amendments Act of 1958, § 3, 72 Stat. 1607.
27
"[T]he provisions of an employment contract . . . shall not be determinative of whether . . . meals . . . are intended as compensation."
28
We do not decide today whether, notwithstanding § 119, the "supper money" exclusion may be justified on other grounds. See, e. g., Treasury Department, Proposed Fringe Benefit Regulations, 40 Fed.Reg. 41118, 41121 (1975) (example 8). Nor do we decide whether sporadic meal reimbursements may be excluded from income. Cf. United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537 (1967).
29
Moreover, it must be recognized that § 213 of the Revenue Act of 1921, 42 Stat. 237, which was involved in Jones v. United States, made a distinction by its terms between "gross income" which included "salaries, wages, or compensation for personal service" and the "compensation received as such" by an officer of the United States. See 60 Ct.Cl., at 563. The Court of Claims assumed that Congress by so distinguishing intended to tax United States officers more narrowly than other taxpayers by levying the income tax only on amounts expressly characterized by Congress as compensation. See ibid. For this reason, Jones is of limited value in construing § 61 which contains no language even remotely similar to § 213.
30
"§ 162. Trade or business expenses.
"(a) In general.—There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including—
"(1) . . .;
"(2) Traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the circumstances) while away from home in the pursuit of a trade of business . . .."
31
Compare supra at 80-81 and Magness v. Commissioner of Internal Revenue, 247 F.2d 740 (CA5 1957), with Saunders v. Commissioner of Internal Revenue.
*
Saunders v. Commissioner of Internal Revenue, 215 F.2d 768 (CA3 1954); United States v. Barrett, 321 F.2d 911 (CA5 1963); Hanson v. Commissioner of Internal Revenue, 298 F.2d 391 (CA8 1962). As in Morelan, certiorari apparently was not sought in any of this line of cases up to that time.
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434 U.S. 100
98 S.Ct. 327
54 L.Ed.2d 324
IDAHO DEPARTMENT OF EMPLOYMENTv.Marlene G. SMITH.
No. 76-1291.
Dec. 5, 1977.
PER CURIAM.
1
Petitioner challenges a ruling of the Idaho Supreme Court that the denial of unemployment benefits to otherwise eligible persons who attend school during the day violates the Equal Protection Clause of the Fourteenth Amendment. Idaho Code § 72-1312(a) (1973) states that "no person shall be deemed to be unemployed while he is attending a regular established school excluding night school . . .." The Idaho Supreme Court held that this provision impermissibly discriminates between those unemployed persons who attend night school and those who attend school during the day and that petitioner could not constitutionally deny unemployment benefits to an otherwise eligible person such as respondent whose attendance at daytime classes would not interfere with employment in her usual occupation and did not affect her availability for fulltime work. We grant the petition for certiorari and reverse the judgment of the Idaho Supreme Court.
2
The holding below misconstrues the requirements of the Equal Protection Clause in the field of social welfare and economics. This Court has consistently deferred to legislative determinations concerning the desirability of statutory classifications affecting the regulation of economic activity and the distribution of economic benefits: "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 (1970), quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911). See also Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976); Mathews v. De Castro, 429 U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972). The legislative classification at issue here passes this test. It was surely rational for the Idaho Legislature to conclude that daytime employment is far more plentiful than nighttime work and, consequently, that attending school during daytime hours imposes a greater restriction upon obtaining full-time employment than does attending school at night. In a world of limited resources, a State may legitimately extend unemployment benefits only to those who are willing to maximize their employment potential by not restricting their availability during the day by attending school. Moreover, the classification serves as a predictable and convenient means for distinguishing between those who are likely to be students primarily and part-time workers only secondarily and thus ineligible for unemployment compensation and those who are primarily full-time workers and students only secondarily without the necessity of making costly individual eligibility determinations which would deplete available resources. The fact that the classification is imperfect and that the availability of some students desiring full-time employment may not be substantially impaired by their attendance at daytime classes does not, under the cases cited supra, render the statute invalid under the United States Constitution.
3
Reversed.
4
Mr. Justice BLACKMUN, concurring.
5
Petitioner Department ruled that respondent became ineligible for state employment insurance benefits when she "enrolled in summer school" (Pet. for Cert. 3) and attended classes from 7 a. m. to 9 a. m., Monday through Friday. These early morning hours of instruction obviously preceded the working day of a retail clerk, respondent's occupation. I would have thought, in light of the fact those school hours did not impinge upon the working day, that the Supreme Court of Idaho might have regarded this as attendance at "night school," within the meaning of Idaho Code § 72-1312(a) (1973). That court, however, chose not to do so and, instead, rested its decision upon difficult and precarious federal equal protection analysis. Correct equal protection analysis, it seems to me, necessarily redounds to petitioner's, rather than respondent's, benefit, and I therefore am compelled, albeit somewhat reluctantly (because the respondent, who was without counsel in the state proceedings, will never understand why the law is against her in this respect), to join the Court's opinion summarily reversing the judgment of the Idaho court.
6
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting in part.
7
I agree with my Brother STEVENS that there is no basis for granting certiorari in this case. I add only that, for me, the record presents serious problems of mootness that have been addressed by neither party's counsel and, in addition, I question whether the federal issue argued by the State here was properly presented below. In light of these additional problems, our summary reversal may indeed "create the unfortunate impression that the Court is more interested in upholding the power of the State than in vindicating individual rights." Post, at 105.
8
Nonetheless, if the federal issue is properly before us, I must agree that the Supreme Court of Idaho committed error. See Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 32 L.Ed.2d 513 (1977). This does not mean, of course, that respondent must lose her unemployment benefits. As my Brother BLACKMUN notes, the Supreme Court of Idaho on remand may well want to consider whether the purpose of the Idaho Legislature in passing the "night school" provision of Idaho Code § 72-1312(a) (1973) would not be better served by construing that phrase to include early morning classes, which like night classes are apparently intended by their provider, Boise State University, to allow persons both to work (or seek work) and to go to school. If this construction is not adopted, the court may want to consider whether the Idaho Constitution invalidates § 72-1312(a). See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977).
9
Mr. Justice STEVENS, dissenting in part.
10
In defining the jurisdiction of this Court to review the final judgments rendered by the highest court of a State, Congress has sharply differentiated between cases in which the state court has rejected a federal claim and those in which the federal claim has been vindicated. In the former category our jurisdiction is mandatory; in the latter, it is discretionary.1
11
Our jurisdiction in this case is in the discretionary category. The Idaho Supreme Court has ordered the Idaho Department of Employment to pay benefits to an Idaho resident, resting its decision on an interpretation of the Fourteenth Amendment. Since this decision does not create a conflict and does not involve a question of national importance, it is inappropriate to grant certiorari and order full briefing and oral argument.
12
Even though there was error in the Idaho Supreme Court's use of the Fourteenth Amendment as a basis for providing an Idaho resident with more protection than the Federal Constitution requires, I do not believe that error is a sufficient justification for the exercise of this Court's discretionary jurisdiction. We are much too busy to correct every error that is called to our attention in the thousands of certiorari petitions that are filed each year. Whenever we attempt to do so summarily, we court the danger of either committing error ourselves or of confusing rather than clarifying the law.2 This risk is aggravated when the losing litigant is too poor to hire a lawyer, as is true in this case.3 Moreover, this Court's random and spasmodic efforts to correct errors summarily may create the unfortunate impression that the Court is more interested in upholding the power of the State than in vindicating individual rights.
13
For these reasons, although I have no quarrel with the majority's analysis of the merits, I think it would have been wise for the Court to deny certiorari in this case.
1
Title 28 U.S.C. § 1257 provides:
"§ 1257. State courts; appeal; certiorari
"Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
"(1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity.
"(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.
"(3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.
"For the purposes of this section, the term 'highest court of a State' includes the District of Columbia Court of Appeals."
2
Cf. Hammer v. Oregon State Penitentiary, 276 Or. 651, 556 P.2d 1348 (1976), summarily vacated and remanded, 434 U.S. 945, 98 S.Ct. 469, 54 L.Ed.2d 306 (Stevens, J., dissenting).
3
Respondent originally submitted a pro se letter in opposition to the petition for certiorari. Through the efforts of petitioner itself, a brief was eventually submitted on her behalf by a professor at the Idaho College of Law.
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Subsets and Splits